Land and Environment Court New South Wales Medium Neutral Citation: oOh! Media Assets Pty Limited v The Council of the City of Sydney [2016] NSWLEC 47 Hearing dates: 14 December 2015, 4 April 2016 Date of orders: 29 April 2016 Decision date: 29 April 2016 Jurisdiction: Class 1 Before: Sheahan J Decision: Appeal dismissed with costs. Catchwords: APPEAL: appeal under s 56A against dismissal by a Commissioner of a Class 1 appeal against refusal of a development application – proposal to replace rooftop sign in a heritage conservation area – characterisation – existing use rights – statutory construction – derogation – RMS concurrence required, but refused on road safety grounds – onus of proof. Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1980 Environmental Planning and Assessment Regulation 2000 Interpretation Act 1987 Land and Environment Court Act 1979 State Environmental Planning Policy No 64 – Advertising and Signage 2001 Sydney Development Control Plan 2012 Sydney Local Environmental Plan 2012 Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 Ashfield Municipal Council v Armstrong [2002] NSWCA 269; 122 LGERA 105 Ashland Chemicals Australasia v Wyong Shire Council (unreported) 10668 of 1988, 1 October 1989 Auburn Council v Constanti [2000] NSWLEC 194; 109 LGERA 355 Auburn Municipal Council v Nehme [1999] NSWCA 383; [1999] 106 LGERA 19 Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243; 114 LGERA 345 Brimbella Pty Ltd v Mosman Municipal Council [1985] 79 LGERA 367 Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55 Brown Brothers Waste Contractors Pty Ltd v Pittwater Council [2015] NSWCA 215; 209 LGERA 53 Bryan v Maloney [1995] 182 CLR 609 Carden and anor v Willoughby Municipal Council [1985] 56 LGRA 366 Carstens v Pittwater Council [1999] NSWLEC 249; 111 LGERA 1 Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 Comcare v Forbutt [2000] FCA 837 Cracknell & Lonergan Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 194; 193 LGERA 151 Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; 155 LGERA 230 Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; 148 LGERA 233 Dorrestijn v South Australian Planning Commission [1984] HCA 76; 54 LGRA 99 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 Fabcot Pty Ltd v Hawkesbury City Council [1997] 93 LGERA 373 Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71; 141 LGERA 14 Forgall Pty Ltd v Greater Taree City Council [2015] NSWLEC 61; 209 LGERA 160 Hoskins v Waverley Council [1999] NSWLEC 236 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378; 53 LGRA 325 Hoy v Coffs Harbour City Council [2015] NSWLEC 128 Iramoo Flyer Pty Ltd v Berrigan Shire Council [2008] NSWLEC 255 ISPT Pty Ltd v Valuer General [2009] NSWCA 31; 165 LGERA 25 J R and E G Richards (NSW) Pty Ltd v Scone Shire Council (unreported) 20249 of 1994, 24 November 1995 Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147; 89 NSWLR 760 Kremer & Associates v North Sydney Municipal Council [1982] 47 LGRA 209 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Mobil Oil Australia v Ku-ring-gai Municipal Council [1990] 70 LGRA 419 Moussa v Owners Corporation of Strata Plan 65404 & Ors [2007] NSWLEC 807 Multistar Pty Ltd v Minister for Urban Affairs and Planning [No2] [2000] NSWLEC 242; 111 LGERA 319 Nesbitt v Warringah Shire Council (unreported) 10021 of 1986, 10 September 1986 North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986 North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) [1990] 71 LGRA 222 O' Donnell v Sutherland Shire Council [2011] NSWLEC 184 Parramatta City Council v Brickworks Ltd (1972) HCA 21; 128 CLR 1 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Randwick Municipal Council v Manousaki [1988] 66 LGRA 330 Royal Agricultural Society of New South Wales v Sydney City Council [1987] 61 LGRA 305 Segal v Waverley Council [2005] NSWCA 310; 64 NSWLR 177 Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 Southon and Others v Plath on Behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; 181 LGERA 352 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195 The Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; 176 LGERA 119 Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 5) [2010] NSWLEC 109 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; 86 NSWLR 527; 200 LGERA 375 Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; 165 LGERA 184 Waterford v The Commonwealth [1987] 163 CLR 54 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) HCA 16; 216 CLR 515 Woollahra Municipal Council v Carr [1985] 62 LGRA 263 Ying v Song [2009] NSWSC 1344 Zhang v Canterbury City Council [1999] NSWLEC 209; 105 LGERA 18 Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589; 115 LGERA 373 Texts Cited: J D Heydon, "Limits to the Powers of Ultimate Appellate Courts" (2006) 122 LQR 399 Category: Principal judgment Parties: oOh! Media Assets Pty Limited (Appellant) The Council of the City of Sydney (First respondent) Roads and Maritime Services of New South Wales (Second Respondent) Representation: Counsel: Mr P Tomasetti, SC (Appellant) Mr I Hemmings, SC (First respondent) Mr M Staunton and Dr J Smith (day 1 and written submissions), barristers (Second respondent) Solicitors: Henry Davis York (Appellant) The Council of the City of Sydney (First respondent) Hunt & Hunt Lawyers (Second respondent) File Number(s): 10719 of 2015 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: [2015] NSWLEC 1269 Date of Decision: 22 July 2015 Before: Acting Senior Commissioner Brown File Number(s): 10813 of 2014 Judgment Introduction 1. This is an appeal (matter no 10719 of 2015) brought under s 56A of the Land and Environment Court Act 1979 ("the Court Act") from the decision by a Commissioner of the Court (matter no 10813 of 2014) to dismiss a Class 1 appeal against a Council's refusal of a development application ("DA"). 2. All three parties were represented at the s 56A appeal hearing by those counsel who had earlier represented them at the Class 1 hearing, and all the material which they had placed before the learned Commissioner appeared to find its way into three Court Books tendered before me: 1. the appellant's Court Book ("ACB"); 2. the appellant's Supplementary Court Book ("SCB"); and 3. the second respondent's Court Book ("2RCB"). 1. All three counsel (Mr P Tomasetti SC for the appellant/applicant, Mr I Hemmings SC for the first respondent Council, and Mr M Staunton for the second respondent, Roads and Maritime Services of New South Wales – "RMS") made comprehensive written submissions on the appeal, and supported them with oral submissions over two days of hearing, regrettably almost four months apart. 2. Section 56A of the Court Act provides: 56A Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall: (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. (3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36. 1. In the present case, the Council refused a DA made by the appellant/applicant to "upgrade" a billboard/sign mounted on the roof of the Oxford Hotel at Taylor Square (134 Oxford St, Darlinghurst). 2. In refusing the relevant DA on 9 September 2014, Council stated eight town planning, road safety, heritage, and public interest grounds (SCB fol 544 – 545), and the appellant/applicant lodged a Class 1 appeal to the Court, on 29 September 2014. 3. At a fairly early stage of the Class 1 appeal (2 December 2014), RMS sought, and was granted, joinder as a second respondent to it. The appellant/applicant did not oppose the joinder. 4. Given the size and location of the proposed sign, the Council (but not necessarily the Court – see Court Act s 39(6)) needs the concurrence of the RMS (Environmental Planning and Assessment Act 1979 ("the EPA Act") s 79B(8)) if approving the proposed development. 5. RMS argues that the subject proposal poses unacceptable risks to road safety, on several bases which it clearly articulated in its Statement of Facts and Contentions of 16 January 2015 (2RCB, tab 4, fols 33 and 34). 6. Council's duty in evaluation and assessment of any DA, and mandated matters for consideration, are comprehensively set out in s 79C(1) of the EPA Act. The chapeau to the subsection says: In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application (emphasis mine). 1. The "matters" stipulated in the subsection, subject to established relevance, include the provisions of any environmental planning instrument ("EPI"), development control plan ("DCP"), and the regulations; "the likely impacts" of the proposed development "including environmental impacts on both the natural and built environments; social and economic impacts in the locality"; and "the public interest". 2. The experts involved in the case at first instance were planners Patrick Quinn (Council) and Belinda Barrett (applicant), visual impact expert Richard Lamb (applicant), heritage experts David Logan (Council) and Robert Staas (applicant), traffic experts David McTiernan (RMS) and Zoran Bakovic (applicant), lighting design and impact expert Ryan Shamier (applicant – an electrical engineer), and driver distraction experts Professors Michael Regan (RMS – a psychologist) and Simon Washington (applicant – an engineer). 3. Acting Senior Commissioner Brown reserved his decision on the Class 1 appeal, after five days of hearing in April and June 2015, and published a lengthy judgment (166 pars), on 22 July 2015: [2015] NSWLEC 1269. He made the following orders (in [166]): (1) The appeal is dismissed. (2) Development Application D/2014/1002 for the replacement of an existing static sign with a digital sign on the roof of the Oxford Hotel at 134 Oxford Street Darlinghurst is refused. (3) The exhibits are returned with the exception of exhibits 6, 1R, A and C. 1. He refused consent on both planning/heritage and road safety grounds, either one of which would have been sufficient, and I will quote extensively from his judgment in a later section of these reasons (commencing at [58] below). The Court Books 1. The ACB contained the Commissioner's judgment (tab 1), the full transcript (416 pages) of the proceedings before him (tab 2); the development consent ("DC") dated 29 May 1992 (tab 3); amended plans filed on 22 December 2014 (tab 4); an extensive range of photographs (tab 5); the July 2007 Department of Planning Guidelines for assessing DAs under State Environmental Planning Policy ("SEPP") No 64 – Advertising and Signage 2001; a letter dated 11 December 2014 regarding a review of them (tab 6); and the following documents: 1. SEPP 64 (tab 7); 2. Sydney Local Environmental Plan ("LEP") 2012 (tab 8); 3. Sydney LEP Heritage Map – Sheet HER_015 (tab 9); 4. Sections 3.9 ("Heritage") and 3.16 ("Signage and Advertising") of the Sydney DCP 2012 (tab 10); and 5. DCP Building Contributions Map – Sheet 015 (tab 11). 1. The SCB contained the Class 1 application, plus the relevant DA and associated Statement of Environmental Effects ("SEE"), as submitted to Council on 9 July 2014 (tab 1); together with four reports or statements of evidence from experts (tabs 2 to 5). 2. The 2RCB contained the appellant/applicant's Further Amended Statement of Facts and Contentions in Reply ("FASFCR" – tab 1); the 1st respondent's Further and Better Particulars (tab 2); the 1st respondent's Amended Statement of Facts and Contentions (tab 3); the 2nd respondent's Statement of Facts and Contentions (tab 4), various reports or statements of evidence (tabs 5 – 8); plus: 1. an August 2014 consultation draft of a document entitled "Transport Corridor Outdoor Advertising and Signage Guidelines Assessing Development Applications Under SEPP 64" (tab 9); and 2. an 8 April 2015 Transport for NSW document entitled "Crash Analysis of Signalised Intersections – Analysis of the Intersection of Oxford St and Flinders St (Traffic Control Systems ID 685)" (tab 10). Some Background 1. It appears that the current Oxford Hotel building dates from 1911. 2. There has been a large "billboard" sign on the hotel roof for over 80 years. 3. The existing sign is a "sky sign", as depicted in the DCP (ACB fol 846, figure 3.22). It is a rooftop-mounted, "flood-lit static vinyl skinned general advertising sign", or an "illuminated billboard" (SCB fols 138, 229, 230, and Tp1, LL6 – 7). 4. The sign has evolved with technology over those years, and the current sign has the benefit of a 1992 DC, for an illuminated sign 15.5 m long and 6.1 m high. Since its erection, the area has been accorded "heritage conservation" status. 5. Council would prefer that the sign be removed, but all parties agree that it enjoys "existing use rights" from a 1980 consent – such advertisements are now prohibited in heritage conservation areas (applicant's FASFCR, tab 1 of 2RCB, pars 9 and 21). 6. "Existing uses" are regulated by Div 10 of Part 4 of the EPA Act, s 108 of which enables the making of regulations which may "make provision for or with respect to existing use". Part 5 of the Regulation made under the EPA Act in 2000 ("the Regulation") does so. 7. The DA made by the appellant/applicant and refused by Council was made pursuant to s 108 of the EPA Act, and cl 43 of the Regulation, to which provisions I will shortly return ([44] – [46] below). 8. Mr Tomasetti defined the "existing use" (at Tp28, LL45 – 49) as: ... rooftop advertising. That's what the existing use is. It's not just specifically for this structure and this sign, but it's wider than that, and the existing use right is to continue to use the building for that purpose of use. 1. In his oral submissions in reply he added (Tp75, LL15 – 19): ... the structure undoubtedly enjoys the right to stay there. Development includes building. Certainly existing use relates to use, but you can't use this sign without the structure. The structure supports the sign, it's one development, and to differentiate or dissect it into physical parts makes no sense at all, and is certainly not consistent with the law ... 1. He also put his case on this basis (Tp29, LL6 – 37): ... a sign which has been there for a long, long time and on a very substantial and frankly unattractive but functional structure. It has an effect, clearly, on heritage and on traffic safety, but that effect is all protected, in our submission, by the existing use. ... ... If the sign can't be changed to digital technology, over time this existing use right is rendered less and less valuable. ... ... the Commissioner ... has adopted an approach which really rules out any digital change to this sign ... 1. In his reply (Tp75, LL30 – 32), Mr Tomasetti criticised the Commissioner for excluding from the "existing use, the structure on which the advertising sign is supported" (judgment at [35]). 2. Put briefly, the proposal of the appellant/applicant is to "alter [the sign] to a different style of sign and as a digital sign" (Tp2, LL19 – 20), and to keep it in the same position, but to house it in an "Alucobond" finish acceptable to Council (L28, and FASFCR, par 52). 3. Some of the existing mounting structure will remain, but the sign itself will be completely replaced. 4. These works have been described as "minor building alterations" (FASFCR, par 2), which will (i) achieve structural improvements and design excellence (FASFCR, pars 13(c) and 43 – 49), (ii) be consistent with heritage conservation objections and controls (pars 20 – 32), (iii) have a positive visual impact (par 40), and (iv) have no impact on road safety (pars 14 – 19). 5. The documents before the Commissioner, and now before me, give more detailed information regarding the subject proposal: 6. The DA described the proposed development (SCB fols 9 and 11) as "conversion of an existing general advertising roof sign to a digital LED screen" sign, significantly smaller in area (see judgment [110]), at an estimated cost of $621,500 (fols 17 and 18). Also, some of the applicant's documentation argued that the proposal should not be regarded as a new sign, but as a conversion to new technology (SCB fol 249). 7. However, the Council, in refusing the DA, described it (fol 544) as seeking "removal of the existing billboard signage at the roof level of the Oxford Hotel and installation of new digital LED billboard signage". 8. Characterisation of both the appellant/applicant's existing use right, and its current proposal, were key issues for the Commissioner in the Class 1 appeal. 9. Mr Hemmings fairly observed (Tp46, LL13 – 14) that "the sign that's there can remain, it can continue to display static vinyl signs". He went on to note that the learned Commissioner had held ([38]) that the proposal was an "alteration", and said (Tp46, LL34 – 43): ... the Commissioner decided that it was relevantly an alteration. You will recall this was the alteration where everything was removed but for part of the internal structure; so not even all of the internal structure remained but all the externals were removed, part of the internal frame, structural elements remained. The sign was then re erected in mostly the same location but of a slightly different size, of a slightly different width, of entirely different materials in all elevations and obviously with the change of the static vinyl sign to the LED. 1. Whereas the advertising content of the current sign is changed every 28 days, the proposed sign, while not "animated", would employ "LED variable message technology", and change content every 10 seconds (the "dwell" time), with each "transition" taking 0.1 seconds (the "Content Management Plan", Appendix E to the SEE). 2. While the RMS initially took the position that no "dwell" time was acceptable (Tp66, LL47 – 48), unless it were 24 hours, with "transition" at 3am (Tp67,L1), Council expressed a preference for a "dwell" time of 45 seconds, and the applicant indicated it would accept a condition to that effect (FASFCR, par 50, and see Tp67, LL5 – 8). 3. The proposed new sign would continue to display general advertising. It would be mounted generally in the same location, would be "substantially enclosed" (FASFCR, par 3), would represent an improvement in appearance, and would be "significantly smaller" (reduced by 42%). It was also claimed that it would represent improved Occupational Health and Safety. (See, generally, applicant's FASFCR, and SCB fols 9, 17, 27, 28, 138, 139, 229, 299, and 310.) 4. The applicant's heritage consultant, Robert Staas, speaks in his expert report (in secs 3.5, 4.17 and 4.18, at SCB fols 611ff) of the proposed sign's, and its supporting structure's, "reduction in size and refinement in character, detailing and overall appearance", which would have an "enhancing" effect, and no adverse heritage or light pollution effect, as a consequence of its being "visually recessive", and enclosing its supporting frame etc with well-coloured, and curved, cladding material (see also SCB fol 297). Principles for s 56A Appeals 1. The principles to be applied to s 56A appeals are well settled, and are not disputed among the parties to the present appeal, who accepted the following statement of them by Mr Staunton (subs par 6): (a) the appeal is limited to questions of law (The Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) (2010) 176 LGERA 119 at 25); (b) a "fine-tooth comb" approach should not be employed when examining the decision of the Commissioner for errors of law (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368); (c) the Court would not take an overly critical or pernickety approach to the Commissioner's decision (Carstens v Pittwater Council (1999) 111 LGERA 1 at [76])). (d) There is no error of law in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 at 77, City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [44], [59], Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; 197 CLR 611 at 654 [138]. (e) No error of law is involved if there was a misattribution of weight to a relevant consideration: Carstens v Pittwater Council (1999) 111 LGERA 1 at [85]; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 334, 335; (f) if the decision of the Commissioner reveals an error of law, then the decision is only vitiated if the error is material to the decision made (Design Power v. Willoughby City Council (2005) 148 LGERA 233 at [34]). (g) an error will not be material to the decision made if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378; 53 LGRA 325 at 332). (h) a party is bound by the way it conducted its case at the hearing (Bankstown City Council v Mohamad El Dana [("El Dana")] [2009] NSWLEC 68 at [47] to [53]). 1. The relevant legal principles were also well summarised by Pain J in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 (at [7] – [11], and [16] – [17]): 7 ... An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale Progress Association Inc [("Warkworth")] [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner's decision cannot be the subject of a s 56A appeal. 8 An appeal under s 56A is "on a question of law" not limited, however, to "an error of law": ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at [3] per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [("Peko")] [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12]. 9 A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to "deal with every argument raised and every possibility that could be adverted to": Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71]. 10 The judgment should be read on the basis that the Commissioners and the parties were present and understood the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79]. 11. An approach to finding error that is nitpicking with an eye to identifying error is not permissible, as identified in numerous authorities commencing from Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Very importantly, a judgment must be considered as a whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O' Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23]. ... 16 ... It is essential that appeal grounds identify with precision the question(s) of law ideally by reference to the judgment challenged. Those questions of law if established must vitiate the decision. ... 17 A further problem with the summons is that many grounds contain a large number of sub-grounds suggestive of a scatter-gun approach to the identification of alleged errors. Legal representatives must resist the temptation to load up a summons with every conceivable error they believe they can identify. Rather, they should focus on the important vitiating errors which are questions of law ... 1. See also my own brief summary of the principles, as they had been summarized by Pepper J in a series of cases to which I also referred, in Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55, at [5]. "Existing Use" Provisions 1. I now set out the relevant sections of the statute, and clauses of the current regulation, which deal with "existing use". 2. "Existing use" provisions are to be found in Div 10 of Part 4 of the EPA Act (some emphasis added): 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 108 Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (d) (Repealed) (2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. ... 109 Continuance of and limitations on other lawful uses (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. (4) (Repealed) ... 109B Saving of effect of existing consents (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. 1. The relevant "existing use" clauses in Part 5 of the Regulation are (some emphasis added): 39 Definitions In this Part: relevant date means: (a) in relation to an existing use referred to in section 106 (a) of the Act—the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or (b) in relation to an existing use referred to in section 106 (b) of the Act—the date when the building, work or land being used for the existing use was first erected, carried out or so used. 40 Object of Part The object of this Part is to regulate existing uses under section 108 (1) of the Act. 41 Certain development allowed (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or ... (2) However, an existing use must not be changed under subclause (1) (e) or (f) unless that change: (a) involves only alterations or additions that are minor in nature, and (b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and (c) does not involve the rebuilding of the premises associated with the existing use, and (d) does not involve a significant intensification of that existing use. (e) (Repealed) ... 42 Development consent required for enlargement, expansion and intensification of existing uses (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 43 Development consent required for alteration or extension of buildings and works (1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension: (a) must be for the existing use of the building or work and for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. 44 Development consent required for rebuilding of buildings and works (1) Development consent is required for any rebuilding of a building or work used for an existing use. (2) The rebuilding: (a) must be for the existing use of the building or work and for no other use, and (b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. 45 Development consent required for changes of existing uses Development consent is required: (a) for any change of an existing use to another use, and (b) in the case of a building, work or land that is used for different existing uses, for any change in the proportions in which the various parts of the building, work or land are used for those purposes. 46 Uses may be changed at the same time as they are altered, extended, enlarged or rebuilt Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45. 1. A former (1980) version of the Regulation is mentioned in some authorities upon which the parties rely, and it had, relevantly for earlier DCs involved in this case, provided, in Part 6: Alteration or extension of existing uses 52. (1) For the purposes of section 108 (1) (a) of the Act, a building or work being used for an existing use may, with consent under the Act being obtained therefor and subject to subclause (2), be altered or extended. ... Rebuilding of buildings and works 53. (1) For the purposes of section 108 (1) (a) of the Act, a building or work being used for an existing use may, with consent under the Act being obtained therefore and subject to subclause (2), be rebuilt. ... Changes of existing uses 54. (1) For the purposes of section 108 (1) (b) of the Act, an existing use may, with consent under the Act being obtained therefor, be changed to another use, including a use which would otherwise be prohibited under the Act. ... The Applicable Planning Regime 1. The learned Commissioner (at [9] – [15], and [22]) described the applicable planning regime as follows: 9 The site is within Zone B2 Local Centre under Sydney Local Environmental Plan 2012 (LEP 2012). Advertising signs are permissible with consent in this zone. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 10 The zone objectives are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To allow appropriate residential uses so as to support the vitality of local centres. 11 Clause 5.10 provides requirements for Heritage conservation with cl 5.10(4) requiring an assessment of the effect of a development on the heritage significance of any heritage items and heritage conservation areas. 12 State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64) applies. The proposed sign is defined as: roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building. 13 The aims of SEPP 64 are: (a) to ensure that signage (including advertising): (i) is compatible with the desired amenity and visual character of an area, and (ii) provides effective communication in suitable locations, and (iii) is of high quality design and finish, and (b) to regulate signage (but not content) under Part 4 of the Act, and (c) to provide time-limited consents for the display of certain advertisements, and (d) to regulate the display of advertisements in transport corridors, and (e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors. 14 Clause 8 provides requirements for granting consent. The clause states: A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied: (a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1. 15 Clause 10(1) states: (1) Despite the provisions of any other environmental planning instrument, the display of an advertisement is prohibited on land that, under an environmental planning instrument, is within any of the following zones or descriptions: heritage area (excluding railway stations) natural or other conservation area ... 22 Sydney Development Control Plan 2012 (DCP 2012) applies to the site and contains requirements for Heritage Conservation Areas and signage. 1. In the hearing of this s 56A appeal, counsel took me to more provisions of some of those key instruments/documents – SEPP64, the LEP, and the DCP. 2. Clause 18 of SEPP 64 provides (some emphasis added): Advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road (1) This clause applies to the display of an advertisement to which clause 17 applies, that is within 250 metres of a classified road any part of which is visible from the classified road. (2) The consent authority must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of the RTA [now the RMS]. (3) In deciding whether or not concurrence should be granted, the RTA must take into consideration: (a) the impact of the display of the advertisement on traffic safety, and (b) the Guidelines. (c) (Repealed) ... 1. Schedule 1 (called up by cl 8, quoted by the Commissioner in [14]) provides: Assessment criteria 1 Character of the area • Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located? • Is the proposal consistent with a particular theme for outdoor advertising in the area or locality? ... 7 Illumination • Would illumination result in unacceptable glare? • Would illumination affect safety for pedestrians, vehicles or aircraft? • Would illumination detract from the amenity of any residence or other form of accommodation? • Can the intensity of the illumination be adjusted, if necessary? • Is the illumination subject to a curfew? 8 Safety • Would the proposal reduce the safety for any public road? • Would the proposal reduce the safety for pedestrians or bicyclists? • Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas? 1. Clause 5.10 of the LEP (to which the Commissioner briefly referred in [11]) relevantly includes also the following: Heritage conservation ... (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of the City of Sydney, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, ... (2) Requirement for consent Development consent is required for any of the following: ... (e) erecting a building on land: ... (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. 1. Section 3 of the DCP contains "general provisions", including some regarding heritage planning, impact, and conservation areas (in s 3.9, at ACB fols 836 – 845). It also has a special section (3.16) on "Signage and Advertising". 2. The opening paragraph of s 3.16 (ACB fol 846) says: This section aims to protect the significant characteristics of buildings, streetscapes, vistas and the city skyline. These provisions are also intended to encourage well-designed and well-positioned signs which contribute to the vitality and legibility of the City of Sydney and respect the amenity of residents and pedestrians and the safety of motorists. 1. The stated "objectives" of that section (fol 846) include: (a) Encourage well designed and suitably located signs which: (i) achieve a high level of design quality; (ii) complement the architectural design and use of buildings and the character of streetscapes; (iii) do not contribute to a cumulative visual clutter on and around buildings; and (iv) do not detrimentally impact on the skyline, streetscape and residential amenity. ... 1. The "general requirements for signs" (fol 847, s 3.16.3) include: ... (2) Signs are to be designed and located in a manner that: (a) relate to an approved use on the site; (b) is compatible in scale and integrated with the architectural design of the building; (c) does not conceal architectural features; (d) ensures corporate colours, logos and other graphics are compatible with the architecture, materials, finishes and colours of the building and the streetscape; (e) take into account the impacts on nearby buildings, streets and existing signs to ensure they do not create unacceptable visual clutter; (f) allow the main facades of buildings from the first floor to the rooftop or parapet to be uncluttered and generally free of signage; (g) considers the appearance of the sign and any supporting structure, and concealing cabling and conduit from all angles, including visibility from the street level and nearby higher buildings and against the skyline; (h) complies with Australian Standards for accessibility; (i) has a minimal projection from a building; (j) does not advertise or promote products or services, for example the logos or brands of products such as soft drinks, brewers, photographic film, etc, other than the products related to the approved use of the premises or site irrespective of whether that product or service is sold or available on the site; and (k) is not (sic) be supported from, hung from or placed on other signs. ... (3) Signs painted on or applied to the roof of a building are not permitted. (4) Existing signs on buildings and on heritage items that may have heritage value must be retained where appropriate, preferably in their original location. Existing signs may include many other types of signs including signs written in pavements, tile work, lead lighting and windows, signs painted on walls or raised in lettering in rendering. 1. Section 3.16.16 is entitled "Signs in heritage conservation areas", and provides: (1) Signs are to be compatible with the heritage significance of the area, constructed from high quality materials such as bronze, brass and stainless steel, and should generally not be constructed predominantly from plastics, such as coloured or clear acrylic. (2) Signs are to be highly compatible with the architecture and materials of the building, and respectful and not detracting from the residential amenity of an area where the heritage conservation area's dominant use is residential. Commissioner Brown's Judgment 1. I turn now to set out, necessarily at some length, some key sections and paragraphs of Commissioner Brown's judgment, mainly those which figured significantly in the summons for this appeal, and/or in its argument. I have added my own emphasis to some of the Commissioner's paragraphs. The issues 1. The learned Commissioner first identified the principal issues before him (at [6] and [7]): 6 The council raise the following contentions in relation to the proposed sign: (1) the limitations to the existing use rights of the existing sign, (2) the sign will have a detrimental impact on heritage significance of the Oxford Hotel and the heritage conservation area and the streetscape of Oxford Street, and (3) the sign will not improve the visual amenity of the locality. 7 The RMS raise the following contentions in relation to the proposed sign: (1) the sign will materially diminish the ability of a driver to discern the presence of, and/or change in traffic control light nearby leading to an increased risk of collisions, and (2) the sign will potentially materially divert a driver's attention, both visually and cognitively, from the task of operating a motor vehicle leading to an increased risk of collisions. "Existing use" 1. After setting out some background detail and the planning controls (see [48] above), the judgment continued with a section concerned with "existing use" questions: The submissions 25 The council and the applicant agree that the sign has existing use rights under s 106(b). Section 107 allows the continuation of that existing use. Section 108 provides the opportunity for regulations to made in relation to an existing use, relevantly for the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use (s 108(1)(a)). Section 43(1) of the Regulations requires that development consent is required for "any alteration or extension of a building or work used for an existing use". Section 44(1) of the Regulations requires that development consent is required for "any alteration or extension of a building or work used for an existing use". It was not clear whether approval was sought under s 43(1) or 44(1) although nothing turns on this as a development application is required in both instances. The parties accepted that a development application was required and consequently an assessment under s 79C(1) of the EPA Act. 26 The parties however differed on parts of the interpretation of the existing use rights provisions, including the extent of the derogation provisions in s 108(3) and the need to consider the difference in impact of the existing sign and the proposed sign or the impact of the proposed sign only. 27 Mr Hemmings submits that a development application may be lodged to allow for a new structure to house the sign. ... The consideration required under s 79C(1) must be made under the current planning controls applying to the site, including LEP 2012, SEPP 64 and DCP 2012, in this case. The assessment by the council's experts, on the basis of the likely impacts of the new sign (and not a comparison with the existing sign) is that the sign should be refused. 28 Mr Hemmings submits that on the derogation provisions in s 108(3), the question to be asked is whether there is anything in the environmental planning instruments that apply, which derogates from that right to make a development application. His response is that if they derogate from the right to make a development application, such as a prohibition, then the provision has no force or effect. But if the provision allows a development application to be made and provides controls that apply to the development application, under s79C, then they do not derogate because the Regulations do not purport to place limitations on the ability to make an application and consequently the assessment of that application. 29 M[r] Tomasetti SC, for the applicant, accepts that a development application is required but submits that not all parts of the current planning controls apply to the proposed sign as certain provisions derogate from the Incorporated Provisions, pursuant to s 108(3). Mr Tomasetti identifies cl 6.21 of LEP 2012, cl 18 and 21 of SEPP 64 and a number of provisions in DCP 2012 as derogating (or "appear to derogate") from the incorporated provisions, and as such these provisions are of no force or effect. The applicant's experts regularly adopt the approach that the assessment should be made on the difference in any impacts between the existing sign and the proposed sign and that this assessment concludes that there is no reason why the sign should not be approved. Findings on existing use rights 30 In considering the different submissions, I agree with the conclusions of Mr Hemmings that, in a planning context, the distinction between use and building work is set out in the Court of Appeal decision in Jojeni Investments Pty Ltd v Mosman Municipal Council [("Jojeni")] [2015] NSWCA 147 where Lemming JA states at [52] to [54]: 52. It is also clear that Council's approval in 1933 was for those structural alterations to be made in accordance with the approved plans; if that did not occur, then an occupation certificate under s 316 might be withheld. However, once again it does not follow that those plans circumscribed the use which might be made of the altered building. It is basic that use must be for a purpose, and that the purpose is not concerned with the nature of the buildings that will be used to serve that purpose. That was the reason for the criticism of substantially the same submission which was advanced by the council in Ashfield Municipal Council v Armstrong [2002] NSWCA 269; 122 LGERA 105, where the question was whether a use of a building comprising four flats had commenced prior to a prohibition coming into force (at [11]): "In specifying 'four flats' as a component part of the 'use', Mr Craig's submission elided the distinction between use and building. The provisions of the EPA Act set out above are concerned with 'existing use', that is, the 'use ... for a lawful purpose' of premises." 53. The same principle was more recently restated in Abret Pty Ltd v Wingecarribee Shire Council [("Abret")] [2011] NSWCA 107; 180 LGERA 343 at [51]-[52] (Beazley JA, Campbell JA and Handley AJA agreeing): "[I]n planning law, 'purpose' is not concerned with the nature of the buildings that will be used to serve that purpose. Uses of different natures can still be seen to serve the same purpose". 54. The primary judge's reasoning appears to have reached a conclusion as to use from the plans alone, divorced from the planning regime applicable in 1933. It will be seen from the foregoing that I would, respectfully, take a different approach. 31 It follows that any derogation must relate to the existing use and not the making of a development application. If a development application can be made there is no derogation when the controls that apply to that development application pursuant to s 79C assessment are applied. 32 While Mr Tomasetti relied on the Court of Appeal decision in Carden and anor v Willoughby Municipal Council [("Carden")] (1985) 56 LGRA 366. I accept the submission of Mr Hemmings that this decision has not been followed in more recent times for good reason. The non-applicability of Carden is specifically identified in the decision of Craig J in Cracknell & Lonergan Pty Ltd v Leichhardt Municipal Council [("Cracknell")] [2012] NSWLEC 197 where His Honour states at ([76]): 76. The Architects submit I am bound to determine that the development standards imposed by cl 19 of LEP 2000 derogate from cl 41(1)(d) and cl 45 of the Regulation by reason of the decision of the Court of Appeal in Carden v Willoughby Municipal Council. I do not accept that submission. In Carden the Court was concerned to determine whether the provision of a regional environmental plan that prohibited the grant of development consent on land in question "unless there is provided on the site a car parking station", derogated from the incorporated provisions in the form which they then took. The use of the land at the time at which development consent was made to change that use was an "existing use" within the meaning of the EPA Act. 33 His Honour further states at ([79]): 79. For the reasons earlier indicated, the proper interpretation of the present Regulation leads me to conclude that the determination in Carden no longer has application to the present form of cl 41(1)(d), at least as it is sought to be applied to the application of development standards imposed in a planning instrument. ….. 34 The consideration of whether any assessment of impact should relate to the sign as proposed, or the difference between the existing sign and proposed sign is best addressed in Stromness Pty Limited v Woollahra Municipal Council [("Stromness")] [2006] NSWLEC 587 where Pain J states at [87] and [88]: 87 The Applicant therefore argued that a merits review for the proposed new building should only be an assessment of the proposed building against what is being replaced. The Applicant is entitled to have its existing use approved, albeit in a new building. That submission is not supported by s 107 and s 108 of the EP&A Act. If s 107(1) and (2) are considered there is no presumption that an existing use which can continue under s 107(1) can be rebuilt (see ss(2)(a)). The Act by virtue of s 108(1) provides that regulations may be made enabling the application for development consent to rebuild a building being used for an existing use. This has been provided for by cl 41 and cl 44 of the Regulation which require that development consent be obtained for the rebuilding. There is no entitlement to a development consent for a rebuilding, only an entitlement to make a development application. No case to which I have been referred has said that in the assessment of a development application to rebuild or intensify an existing use it is a given that the new proposal must be assessed as against what it replaces to determine if it is satisfactory. Principle 2 in Fodor [Investments v Hornsby Shire Council ("Fodor") [2005] NSWLEC 71; 141 LGERA 14] states that where an existing building is proposed for demolition there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. That is correct in my view, given the provisions of the EP&A Act I have outlined. If a merit assessment under s 79C is applied to a new building which is a rebuilding for the purposes of continuing an existing use, it is possible that the existing use holder will not be allowed to build something identical to that which already exists if a merits assessment results in the conclusion that the impacts under s 79C are unacceptable. 88 That is not to say that consideration of the building intended to be replaced is irrelevant to the merit analysis under s 79C. It may well be appropriate depending on the circumstances that the building intending to be replaced is considered, and I consider it is appropriate in this case to do so. The merits assessment is not confined to that comparison only however, it is also necessary to consider the development application more broadly under s 79C. …. 35 I accept that the existing use rights are limited to the use of the structure, that is for displaying signage rather than the structure itself. This has a significant impact on the assessment of the impacts of the proposed sign. In accepting that the signage, rather than the sign structure has existing use rights, the general approach of the council experts that any s 79C assessment must be made on the sign as a new structure and subject to the currently applying planning controls is the correct approach. The proposition that the assessment of any impacts should be addressed as an exercise in assessing the difference in impacts between the existing sign and the proposed sign must be rejected. 36 It was not clear how the proposed sign was to be characterised for the purposes of the Regulations, although it did not ultimately affect how the application was to be considered. The development application describes the proposed sign as "the upgrade of the existing approved Advertising Sign to a Digital Display", the Statement of Environmental Effects describes the application as "the conversion of an existing general advertising sign to a digital LED screen" and Mr Tomasetti's written submissions states the "Proposed Sign will retain the position and orientation of the Existing Sign and will continue to use the structure of the Existing Sign". 37 If there is any dispute over the specific type of development and how it is to be characterised in the Regulations, that is whether it is "alteration or extension of a building or work used for an existing use" (s 43(1) Regs) or "rebuilding of buildings and works" (s 44(1) Regs) , I accept the explanation provided by Mr Logan, the councils architect and heritage consultant, on the new and existing structural details for the proposed sign where he states: Having reviewed the three engineering drawings prepared by Engineering Studio, it appears to me that the supporting structure for the new sign is largely new. The footer beams of the existing structure are retained, as are 7 existing columns (one of which is relocated). Nevertheless, the drawings show that a range of new structural elements is to be introduced to support the new sign including a large number of beams, columns and bracing elements. It appears to me that the number of new structural elements far exceeds the number of existing elements that are retained. Further, the structural form is quite different to that of the existing sign 38 On the basis of Mr Logan's analysis, I accept that the proposed sign is the "alteration or extension of a building or work used for an existing use" addressed in s 43(1) of the Regulations. 1. The three major cases to which the Commissioner referred in the sections I have just quoted from his judgment – namely, Carden (1985, in [32] above), Stromness (2006, in [34]), and, Cracknell (2012, also in [32]) – will be further examined later in these reasons (from [119] below). Heritage 1. The next section of the learned Commissioner's judgment dealt with heritage considerations: The evidence ... 48 The existing sign is an existing use and will continue in place if the proposed development is refused approval. On this basis, Mr Staas has had regard to the impact of the proposed sign on any relevant heritage significance of the contributory building or the Conservation Area when compared to the current prevailing circumstances and the existing sign. In his opinion there are no relevant adverse impacts. Mr Staas considers there are no impacts for the following reasons • the proposed sign replaces an existing sign of more visual impact in Taylor Square and Oxford Street. • the new sign is substantially smaller than the existing sign both in size and in visible sign area. • the location of the new signage is moved to the north east away from the parapet of the hotel and its relationship to the streetscape in Oxford Street. • the enclosure of the existing supporting frame with new cladding material and colour is an improved visual outcome when viewed from the west looking to the site and from the east and south looking towards the sign. This improvement is also effected by the use of curved ends to the sign structure which are visually recessive. • the technology of the sign reduces light pollution. • any impact upon the heritage significance of the Conservation Area and upon this contributory building of the proposed sign over and above the existing sign is so slight as to be difficult to objectively identify. Advertising signage has been part and parcel of the Taylor Square streetscape for many decades. ... 53 The Recommended Management for the Oxford Hotel, included in the Heritage Inventory Assessment Report is as follows: The building does not warrant listing as an individual heritage item on account of its diminished intactness. However, appropriate conservation action relating to its exterior may raise its significance to the threshold of potential heritage listing. • Notwithstanding its present condition, all conservation, adaptive reuse and future development should be undertaken in accordance with the Australian ICOMOS Charter for Places of Cultural Significance (The Burra Charter). • A Conservation Management Strategy should be prepared for the entire building to ensure that future change is managed in a coordinated fashion. • Retain and conserve all intact original external and internal building fabric and the external appearance of the building. • Retain and conserve original awning fabric. • Encourage owners to reconstruct the original tower and parapet detailing, based on available documentary and photographic evidence. • Encourage owners to remove paint from brick and stone surfaces within the principal facades. • Encourage owners to reinstate the balcony on the second floor. • There should be no further additions at roof level. Detailing of new fabric should respect the integrity and existing character of the building and its original fabric. • Investigate ways to encourage removal of the advertising sign on the roof of the building (emphasis added) 54 Mr Logan states that council has identified that the existing sign detracts from the character of the site and its desired future character. The council's policy is to encourage the removal of the advertising sign from the roof of the building. The proposed development is clearly inconsistent with the desired future character, as defined by council. ... 56 The history of signage associated with the site does not contribute to the overall significance of the Oxford Hotel, Oxford Street or Taylor Square. Therefore, it should not be used as a precedent to justify approval of the proposed sign, particularly in light of the council's stated policy to encourage removal of the advertising site from the roof of the building in order to enhance its contributory value. ... 60 The proposal would result in the removal of the existing unsympathetic sign, consistent with these requirements. However, the proposal to replace it with a new form of sign incorporating an LED screen would be more visually disruptive and inconsistent with these requirements, in particular (2) and (3)(a). The proposed LED sign would significantly alter the visual setting of the Oxford Hotel on its two principal facades. It would not respect the significant original character or built form of the Oxford Hotel. Further, it would prevent the reinstatement of the previous removed external elements, in particular the significant original corner tower/cupola, which the Council's policies seek to reconstruct. 61 In failing to provide an appropriate visual setting for the contributory item as well as adjacent contributory items and heritage items, the proposal would be inconsistent with objectives (a) and (b) in cl 5.10 of LEP 2012. Further, the proposal would be inconsistent with the relevant requirements in contained in part 3.9.7 of DCP 2012: ... Findings ... 69 In considering the competing evidence and with the benefit of a site inspection, I agree with the conclusions of Mr Logan for a number of reasons. First, it must be acknowledged that the Oxford Hotel is within a conservation area and is a contributory building. ... 70 The unsuitability of a sign on the roof of the Hotel is also addressed in the Recommended Management for the Oxford Hotel where it states: Investigate ways to encourage removal of the advertising sign on the roof of the building 71 I agree the proposed sign will unacceptably alter the visual setting of the Oxford Hotel on its two facades. It would overpower and create a dominant feature directly above the Oxford Hotel, marginalising and diluting the significant original character and built form of the Oxford Hotel on a visually prominent corner of the Conservation Area. The proposed sign would also detract from the historic character and significance of Taylor Square where the vast majority of buildings are historic heritage items or contributory items. 72 I have little trouble in concluding that a sign of the size proposed in this application would be contrary to the character and significance of the Conservation Area. ... 77 I accept Mr Logan's evidence that the proposed sign would not respect the roofscape of the existing contributory building on which it is located, or the roofscape of the adjacent Federation period buildings in the streetscape on the northern side of Oxford Street. 78 Fourth, the evidence of Mr Staas relied largely on the false presumption that the impact of the proposed sign should be assessed on the basis that the existing sign was part of the consideration of heritage impact. I have found that this incorrect and that an assessment under s 79C is required for the proposed sign. While Mr Staas was cross-examined on his approach, no clear response was provided to the question of whether an assessment of the proposed sign under s79C would warrant the refusal of the application, on heritage grounds. Mr Staas did state, however that it was his opinion that the council's controls were biased against roof-top signage. 79 For the reasons in the preceding paragraphs, I find that the proposed sign is contrary to objective (b) of cl 5.10 of LEP 2012, in that the proposed sign does not conserve the heritage significance of the Conservation Area as identified in the Statement of Significance. 80 I am satisfied that the inconsistency with objective (b) and the the (sic) effect of the proposed development on the heritage significance of the Conservation Area, in accordance with cl 5.10(4), is so significant that these matters warrant the refusal of the application for this reason alone. 81 I am also satisfied that the following inconsistencies further support the refusal of the application for heritage reasons: • cl 3.9.6 of DCP 2012, in that the proposed sign is not designed to respect neighbouring buildings and the character of the area, • cl 3.9.7 of DCP 2012, in that alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements (cl 3.9.7(2)) and alterations and additions to a contributory building are to respect significant original or characteristic built form (cl 3.9.7(3)(a)), • pt 1 and pt 2 of Sch 1 of SEPP 64, and • parts of pt 4 and pt 5 of Sch 1 of SEPP 64. ... Road Safety 1. Finally, I quote now from the Commissioner's remarks concerning the road safety issues: Findings ... 103 Clause 8 requires the Court to be satisfied that the proposed sign would not "reduce the safety for any public road" or "reduce the safety for pedestrians or bicyclists" or "reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas" otherwise development consent must not be granted. The evidence focussed largely, but not exclusively, on the first two dot points; the safety of the intersection of the Flinders Street and Oxford Street and the safety for pedestrians or bicyclists using the intersection. 104 Even though the proposed sign is a prohibited by SEPP 64 and relies on existing use rights, cl 8 still applies. The assessment under SEPP 64 must be on the basis of the likely impacts of a new sign structure rather than a comparison with the existing sign. ... 106 To answer the question posed by cl 8 of SEPP 64, I am satisfied that that the proposed sign would "reduce the safety for any public road" and "the safety for pedestrians or bicyclists" to an unacceptable level for two principal reasons and not for all the reasons suggested by Mr McTiernan. 107 First, the appropriate dwell time for the proposed sign was a matter that was not satisfactorily resolved, in my view, and is an important matter that leads to a lack of satisfaction to the first two dot points in pt 8 of Schedule 1. Given that the dwell time has a very important function as it has the potential to increase distraction (for shorter dwell times) or decrease the potential for distraction (for longer times) the expert evidence was unhelpful, at best. Mr Bakovic offered no helpful evidence beyond stating that the 10 second standard in the draft Guidelines was undoubtedly prepared by qualified persons in the RMS and that he saw no reason to question it. As the applicant would accept a dwell time of 45 seconds, Mr Bakovic saw no issue with a 45 second dwell time based on the dwell time in the draft Guidelines. Mr McTiernan's evidence was no more helpful as he relied totally on instructions from personnel in the RMS. He simply repeated his instructions to the Court. These instructions were reflected in the conditions of consent where the RMS sought, over the time of the hearing, dwell times of 60 seconds, 120 seconds and ultimately 24 hours with a change-over of signs at 3.00am. The RMS response, via Mr McTiernan, appeared as some whimsical game of numbers designed to frustrate the application rather than provide a professional response to a very important question. The 24 hour dwell time finally proposed by the RMS was, in effect, tantamount to the refusal of the application. 108 Their response was more difficult to accept given the agreement of the RMS to much shorter dwell times for other digital signs on RMS land, even considering the complexity of the subject intersection. As the evidence unfolded, it was clear that Mr McTiernan (or his company) had been involved in the peer reviewing of applications for digital signs for the RMS, including dwell times. It must be accepted that Mr McTiernan had the knowledge and experience to address the question of appropriate dwell times but it appeared that he was restricted by his instructions from the RMS. The matter of dwell times may have been resolved if the RMS has taken the time to provide a proper response to the question of an appropriate dwell time. 109 In coming to this conclusion, I accept that the onus of satisfying the Court as to the suitability of the application rests with the applicant, however the evidence of both Mr McTiernan and Mr Bakovic provided little, or no guidance on this important issue. I have placed no weight on the recommended 10 second dwell time in the draft Guidelines and relied upon by Mr Bakovic. Mr McTiernan and Mr Bakovic both agreed that the 10 second dwell time was a simplistic response to a complicated issue and that safety went far beyond a dwell time based on the speed of the road where the digital sign is located. They went as far as saying that the dwell times in the draft Guidelines were incorrect for their respective speeds. 110 Second, the evidence of Mr McTiernan and Mr Bakovic on the potential safety risks at the intersection is difficult to assess because much of the evidence (particularly the evidence of Mr Bakovic) focussed on the difference between the existing sign and the proposed sign. For example, Mr Bakovic places emphasis on the fact that the advertising area of the proposed sign is smaller than the existing sign (and was critical of Mr McTiernan for not acknowledging this fact in his evidence). Even if this was the correct approach, I am not sure that this is a matter that supports the approval of the sign. The difference in advertising area between 54.59 sq m and 95.55 sq m is significant in numerical terms but far less significant from a driver's point of view given its illumination and prominent location on a building at the intersection of two significant and busy roads. 111 If considered in this context, I generally adopt the comments of Mr McTiernan. If the proposed sign was to be erected, I accept that it would have a strong likelihood of capturing a driver's attention at critical points along both Flinders and Oxford Streets. The potential impacts are drifting from one lane to another and the risk of a collision with adjacent vehicles, rear-end type collisions and failure to observe pedestrians crossing at midblock locations and the intersection. This has the potential to adversely affect activities critical to safe driving at these locations. Added weight to this comes from the poor accident history of the intersection and high vehicle and pedestrian activity at certain times. ... Driver distraction ... 130 The existing billboard has potential to interfere with activities critical for safe driving for the following reasons: • it is designed to attract and capture attention, and did so for 70% of the drivers in the eye tracking study, • it is located at a site at which demands on drivers' limited attention are already high, leaving little spare attention available to attend to and comprehend the sign, • the sign is located such as to draw motorists' attention away from the forward field of view, especially as they approach the intersection of Oxford and Flinders Streets, and • the sign is located at a site high in visual clutter, which may hinder the apprehension of driving-relevant information in close the proximity of the sign. 131 The present billboard is likely to be increasing road safety crash risk for some drivers, by virtue of its demonstrated ability to divert attention away from activities critical for safe driving (up to 4 times on approach to the billboard, and for considerable periods of time), without some drivers even being aware that it has. 132 Advertising billboards are among a number of objects, events and activities external to the vehicle which, collectively, have potential to divert attention away from activities critical from safe driving and, in doing so, have been shown in previous research to increase crash risk by up to 3.7 times. 133 A number of crashes have occurred on both approaches to the existing billboard at the locations at which the potential for the existing sign to attract attention is judged to be highest. As yet, there have been no crashes recorded in which the existing billboard is cited as a contributing factor. Although Professor Regan cannot be certain, this may be because crash risk from the existing billboard is low, because motorists can self-regulate driving to compensate for the risk, because motorists are not aware when they are distracted by the sign (the eye tracking study has confirmed this as a possibility), or because police do not question the role of the billboard in recorded crashes. 134 While there is no direct evidence that distraction from the existing billboard caused any of these crashes, six of the crash types that have occurred are consistent with the types of crashes that might be expected when a driver diverts attention away from activities critical for safe driving at those locations. ... Driver distraction – findings ... 158 While the evidence of Professor Regan and Professor Washington occupied a significant part of the proceedings, it seems that the underwhelming conclusion is that based on the academic research; the relationship between billboards and road safety is inconclusive. 159 However adopting a common sense and conservative approach, the placement of a digital sign in the location and the size proposed in this application could reasonably lead to a conclusion that there is an increased risk of a motor vehicle accident. Professor Washington accepted such a conclusion but qualified any risk as being acceptable. On that basis Professor Regan's conclusions are more apt. It must be accepted that advertising billboards attract attention, involuntarily and voluntarily - although not from all drivers, and not in all situations and that advertising billboards that attract attention involuntarily may compromise a driver's ability to self-regulate in response to distraction. 160 While Professor Washington is correct in that billboards are only one of the many likely causes of distraction to motorists and that the research indicates that there are many other sources likely to have a greater impact than billboards: that response is not necessarily responsive to the question that the Court is required to answer. The relevant questions being those posed by pt 8 in Sch 1 of cl 8 of SEPP 64 is: • Would the proposal reduce the safety for any public road? • Would the proposal reduce the safety for pedestrians or bicyclists? 161 This leads into the second matter; the particular characteristics of the subject intersection. I accept that the crash data and narratives do not provide any useful information on the cause of the crashes when considered in the context of potential distraction of drivers from the existing sign. As explained at the hearing, the coding of crash reporting does not necessarily identify distraction from signage, as a source of a crash, even if a person chose to identify this as the reason for the crash. ... 163 Even If it is accepted that the academic literature does not provide comprehensive support for a link between electronic billboards and reduced road safety, care must be taken in ensuring that the erection of an electronic billboard is not located where it could exacerbate an already unacceptable traffic and safety situation. In this case, what cannot be disputed or overstated is that the subject intersection has a poor accident record. The NSW Centre for Road Safety provided the following information on the intersection: Crashes were identified using an initial 30m spatial buffer around each signalised intersection, and crashes were included in this analysis where they were located within 10m of the intersection. Over the period July 2009-June 2014, there were 18 crashes at the intersection of Oxford St and Flinders St, resulting in 13 injuries with five of the injuries at the location categorised as 'serious' meaning the injured person was admitted to hospital. Of these crashes, 7 (38.9%) involved a pedestrian, which typically result in serious injuries to the pedestrian. …. the intersection of Oxford St and Flinders St (Traffic Control Systems ID 685) is ranked 224 of the 3400 signalised intersections in NSW placing the intersection in the worst 10% of signalised intersections; casualties in NSW. 164 Rhetorically, it could be asked why an electronic billboard, that is designed to be noticed, has a prominent location at an intersection that has a poor accident history for vehicles and pedestrians and in an area that attracts large numbers of people is appropriately located in terms of road safety. Unlike many of the voluntary and involuntary distractions identified by Professor Washington, there is the opportunity to avoid a distraction that could be potentially unacceptably impact on road safety at the intersection. 165 In response to the question posed by cl 8 of SEPP 64, I am satisfied that that the proposed sign would "reduce the safety for any public road" and "would reduce the safety for pedestrians or bicyclists" given the potential for driver distraction when combined with the poor accident history of the intersection and, at times, the large number of people that can frequent the area near the location of the proposed sign. Orders 1. The learned Commissioner then (at [166]) made the orders I have already noted (in [13] above). The Grounds of the Present Appeal 1. The summons commencing the present appeal against the judgment just quoted was filed on 18 August 2015. 2. It pleads nine grounds for seeking to have (i) the Commissioner's orders of 22 July 2015 set aside, and (ii) the matter "remitted for determination according to law, to a Commissioner other than Acting Senior Commissioner Brown". 3. Most of the nine grounds identify the allegedly relevant paragraphs of Brown C's judgment (all of which I have set out in the previous section). The seven substantive grounds are: Incorrect Approach to Considering the Application 1 Having characterised the development application as one for alteration of a work used for an existing use pursuant to clause 43(1) of the Environmental Planning and Assessment Regulation 2000, the Commissioner erred in law by then assessing the impact of the proposed development under s79C(1)(b) on the basis that the existing sign with its supporting structure was not part of the built environment: [35], [38], [78], [104], [110], [159], [165]. Incorrect Construction of s108(3) of the EPA Act 1979 2 The Commissioner misconstrued s108(3) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979) by holding that it only operates to render a provision in an environmental planning instrument of no force and effect where the provision derogates from the right to make a development application in respect of an existing use: [28], [30], [31]. Unlawful Not to Apply Carden's Case 3 The Commissioner erred in law in refusing to follow and apply [Carden], a decision of the Supreme Court of NSW, Court of Appeal which was binding upon him: [32] - [34]. Incorrect characterisation of the Existing Use 4 The Commissioner erred in law in holding that the existing use for the purposes of Part 4, Division 10 of the EPA Act 1979 was the use of the structure for the displaying of signage and not the signage together with its supporting structure: [35] 5 The Commissioner erred in law in assessing the development application under s79C on the basis that the sign and supporting structure was a new structure and subject to the currently applying planning controls and a comparison between the existing structure and the proposed structure was not to be undertaken: [35] and [104]. Incorrect Application of Planning Controls 6 The Commissioner erred in law in applying provisions of the State Environmental Planning Policy No 64—Advertising and Signage, Sydney Local Environmental Plan 2012, and Development Control Plan 2012 in breach of s108(3) of the EPA Act 1979. Incorrect Attribution of Onus 7 The Commissioner erred in law by assessing the application on the basis that the applicant had an onus of satisfying the Court as to the suitability of the application: [109]. 1. In respect of the question of an "exclusionary" remitter, in the event of the appeal succeeding, the summons pleads: Apprehended Bias on Remitter 8 There is reasonable apprehension of prejudgment where the Commissioner: a. has made findings in the proceedings concerning heritage [72]; b. has rejected Mr Staas' evidence as being based upon a false presumption [78]; c. has expressed preference for the evidence of Mr McTiernan over that of Mr Bakovic [106]; d. has expressed preference for the evidence of Professor Regan over that of Professor Washington [159]; and e. is asked to ignore these findings and revisit them. 9 A hypothetical lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the questions that he is required to decide. Accordingly an exclusionary order ought to be made on any remitter in respect to Acting Senior Commissioner Brown: Brown Brothers [Waste Contractors Pty Ltd] v Pittwater Council [2015] NSWCA 215; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (at [33]) per Gleeson CJ, McHugh, Gummow and Hayne JJ; Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (at [31]) per Gummow ACJ, Hayne, Crennan and Bell JJ. 1. RMS submitted that appeal grounds 2 to 6 should not be entertained, as their essence had not been put to the Commissioner at first instance (Tp69, LL32 – 36). In El Dana ([41](h) above), Biscoe J discussed this question and surveyed relevant cases (at [47] – [53]). See also Warkworth, at [39] – [45]. 2. The parties in their written submissions grouped grounds differently, but the appellant in oral argument addressed grounds 1 to 6 in a group (Tp25, LL25 – 29). There were no written submissions on ground 6. 3. Grounds 1 to 5 were of particular concern to Council, and ground 7 to RMS. 4. Grounds 8 and 9 do not arise for consideration unless the appeal succeeds on one or more of the substantive grounds, to the extent that a remitter for re-determination ought be ordered. The Competing Arguments 1. The parties differ on the construction, interpretation, and application, of the existing use provisions, especially the derogation provision in s 108(3), and they differ also on whether there is need to consider the impacts of the proposed sign, as compared with the existing (judgment [26]). 2. I turn now to summarize the competing submissions put to the Court on the substantive grounds of appeal. Ground 1 – the consideration of the DA 1. The appellant/applicant says that, despite finding that the DA was for an "alteration" under cl 43(1) of the Regulation, the learned Commissioner erroneously considered it as if it were an application for a new structure and sign, and, contrary to Stromness (at [88]), failed to consider the existing structure and sign as part of the built environment, pursuant to s 79C(1)(b). 2. This error allegedly "infected ... the manner in which heritage and traffic safety issues were resolved" (sub 21). 3. The Council argues (sub 6) that the principal requirement of cl 43 is the need to obtain DC, but the Regulation identifies no different regime from the normal assessment process followed for otherwise permissible development. DC does not have to be granted. Planning documents may "derogate", or may inform the merit assessment process. Council claims that the appellant/applicant's approach is based on a contention that DC cannot be refused. (The appellant/applicant emphatically rejects that claim – Reply sub 7.) 4. Council argues that the Commissioner, in the absence of a stipulated "correct" approach, had to decide how he preferred to approach the assessment task, and he quite legally elected to consider the impact of the "amended development" (sub 20), rather than of the "alteration alone" (sub 21). 5. RMS (subs 21 – 23) argues that the Commissioner did, in fact, take the existing sign into account, and it was entirely a matter for him to decide what weight he would give to it (also Tp63, LL7 – 8). He appropriately came to the view that the proposed alterations "were so significant that it was in effect a new sign". RMS also makes the point (sub 27) that the application was not for a s 96 modification of the existing consent (see T4.6.15, p377, LL22 – 34). 6. In its reply subs (par 105), the appellant/applicant says: "... The Commissioner approached the determination of what was an adverse effect by ignoring the presence of the existing sign and this was in breach of the statutory obligation in section 79C(1)(b)". Ground 2 – the construction of s 108(3) 1. The appellant/applicant says that the Commissioner made an error in not following Carden, which was binding on him: Any provision of SEPP 64, the LEP or the DCP that restricts the power of the Council or the Court to give consent, derogates from cl 43 of the Regulation and is of no force or effect. Any DA must be assessed with "great care" (sub 29 – see Stromness at [89]). 2. The learned Commissioner found the proposed sign to be contrary to the SEPP, the LEP and the DCP, and dismissed the appeal. The appellant/applicant says that his dismissal of the application offends Stromness, at [89] – "The provisions relied upon by the Commissioner self-evidently derogated from the power of the Council and the court on appeal to grant DC to the alteration of the existing sign. Accordingly, they were of no force or effect: s 108(3)"; and "the Commissioner fell into error of law when he took into account irrelevant considerations" (subs 31 – 32). 3. The Council says the Commissioner was correct to hold that cl 10.1 of SEPP 64 had the effect of derogating – it made the applicant's proposal a prohibited development, meaning that the proposal in the present circumstances had to be considered on its merits. It was not his function to "divine which ... provisions ... derogate" (sub 26). 4. In its reply submissions, the appellant/applicant says (subs 21 – 23): 21. Had the legislature intended for s 108(3) to be interpreted in the way that the Council contends, then the legislature surely would have used different words to clearly and unambiguously convey that intention. We would expect that the text of s 108(3) would more closely reflect the text of s 106 and state that any provisions of an EPI that "would prohibit or have the effect of prohibiting the development provided for by the incorporated provisions have no force or effect while the incorporated provisions remain in force." 22. Instead, s 108(3) deliberately employs much broader language than "prohibit," clearly intended to limit the application of all types of provisions of EPIs that would otherwise apply to the assessment of permissible development under s 79C of the EPA Act. 23. Moreover, s 108(3) states that "any provisions" that would derogate or have the effect of derogating have no force or effect. It does not place any restriction on the type of provisions that may derogate. It does not state that any "non-discretionary provision", "any mandatory provision" or any "development standard" that would derogate or have the effect of derogating has no force or effect. ... 1. The reply submissions go on to rely upon a list of cases to which I will return (at [109] below). Grounds 2 to 6 – RMS's submissions, and the appellant's response 1. RMS grouped grounds 2 to 6 together in its written submissions, and the effect of its submissions is as follows: 2. The Commissioner determined RMS's safety contention on its merits, taking into account "well recognised town planning principles", and the requirements of s 79C, "consistent with the way the case was run before him by the parties" (sub 29). Clause 8(b) and Schedule 1 of SEPP 64 do not derogate from the incorporated provisions (sub 31), and the Commissioner did not err in law in applying SEPP 64 in breach of s 108(3) (sub 32). 3. RMS also submits that, as the road safety issues were determinative of the matter (judgment at [165]), and the Commissioner made no error on them, any other errors in the Commissioner's decision may not vitiate it (subs 33 – 35 and the cases cited there, including Peko). 4. In its reply submissions (sub 93), the appellant/applicant said of the RMS submissions: It is true that the Appellant accepted that the development application required consideration of road safety issues. However, the Appellant submitted that the relevant road safety issue was any additional adverse impact upon road safety arising from the alterations to the existing sign in comparison to the existing impact on road safety arising from the existing sign (and structure). The Commissioner did not agree. The appellant submits that he fell into error of law in this regard. Ground 3 and 5 – Carden 1. The appellant/applicant made the following submissions, taking grounds 3 and 5 together: 2. Failure to follow Carden was an error of law: see Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166. The Commissioner cited Cracknell as authority for his not following Carden, but the relevant statements in Cracknell ([76]—[79]) were obiter, the decision in Cracknell offended the doctrine of precedent, and Cracknell dealt with cl 41(1) and not cl 43: Royal Agricultural Society of New South Wales v Sydney City Council ("RAS") (1987) 61 LGRA 305, at 309 – 310; Fabcot Pty Ltd v Hawkesbury City Council ("Fabcot") (1997) 93 LGERA 373, at 378. 3. The appellant/applicant submits that "the effect of the Commissioner's reasoning was that provisions of no force and effect ... were given determining weight ... in defiance of binding precedent" (sub 42). 4. The Council argues that "properly understood, ... the Commissioner did apply Carden's case" (sub 28). Even if I were satisfied he did not, no error of law is disclosed – either because the relevant remarks in Carden were obiter, or the decision was distinguishable, or perhaps both (sub 29). The appellant/applicant in this case distinguishes Cracknell on the present facts, and the Commissioner had to decide which case to follow or apply. No error of law is disclosed. 5. The appellant/applicant, in ground 5, suggests that the Commissioner erred by assessing the DA by reference to "currently applying planning controls" (Council sub 37), but Council submits (sub 38) that "once it is accepted – as the Appellant does – that the consequence of the incorporated provisions is to permit the making of a [DA], then it must also be accepted that s 79C applies". That s 79C process required the Commissioner to consider, and give appropriate weight to those provisions of the current planning regime that do not derogate, or have that effect. No errors are disclosed by that process having resulted in a decision to refuse (sub 39). Ground 4 – incorrect characterisation of the existing use? 1. The appellant/applicant submits that four of the Commissioner's findings raise questions of law, and are infected with error: Sub 43 identifies them as follows: (a) The existing use was limited to the use of the structure rather than the structure itself [35]; (b) The sign had existing use "rights" but not the sign structure [38] to which the sign was attached - which conclusion he found had a significant impact on the consideration of the application for the proposed LED sign [35]: (c) In accepting that the sign, rather than the sign structure had existing use rights, the general approach of the council's experts that any s 79C assessment must be made on the sign as a new structure and subject to the currently applying planning controls is the correct approach: [35] [104]. (d) The proposition that the difference in impacts between the existing sign and the proposed sign must be rejected: [35] [104] 1. The advertising sign and its supporting structures together, comprise the existing use, protected from prohibition. "One cannot display the sign without the structure" (sub 45). In this case both were to be altered, and it was the impact on the built environment of the alterations to both which fell to be considered. It would be contrary to the statute to ignore the "built environment", which included both the existing sign and its supporting structure. The Court in Stromness (at [81], [87] – [89], [95] – [97]) did not ignore the building used for the existing use (residential flats) when it assessed the impact of the proposal to rebuild it. 2. The appellant/applicant further submits (subs pars 60 – 61): 60. Section 79C requires a consent authority to take into consideration such of the matters listed "as are of relevance to the development the subject of the development application". To assess an application to alter a work used for an existing use as though the application was for an entirely new development and the use was not existing as part of the built environment contravenes and misconstrues the chapeau to s 79C because it is a consideration of something other than the development that is the subject of the application for which consent is actually sought. 61. Section 79C requires the consent authority to consider only those matters that are relevant to the application. To the extent that the application seeks to alter a building used for an existing use, it is the impact of the alterations that are to be considered. 1. The appellant/applicant also relied (sub 68) on Preston Ch J's decision in Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321, in particular [55]: Thirdly, the obligation on the Commissioner was to determine the particular development application before the Court. The task involved assessing the impacts of the development proposed on the environment existing at the time of determination of the application. As noted, no work to reconstruct Governor's Road had been carried out pursuant to the 1995 consent. Hence, the vegetation in Governor's Road remained untouched. Consideration of the impact of the roadworks proposed in the current development application before the Court required the Commissioner to consider the existing vegetation in Governor's Road and the impacts that carrying out the roadworks would have on this existing vegetation. This task was in fact undertaken by the Commissioner. 1. The Council submits that the Commissioner was entirely correct to apply his mind to the purpose of the use, and not its nature: Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400; Abret; Valuer-General v Fivex Pty Ltd [2015] NSWCA 53. No error is disclosed. Ground 6 – planning controls 1. Neither the appellant nor the Council made any submissions on ground 6. RMS referred to it, but globally, with grounds 2 – 5 (see [86] above). Ground 7 – onus 1. Commissioner Brown held that the question of the appropriate "dwell" time for the proposed LED sign was not satisfactorily resolved by the evidence before him. He said he found little help in the expert evidence he received, and he found ([109] – [110]) that the applicant had failed to discharge its "onus of satisfying the Court as to the suitability of the application". 2. The appellant/applicant acknowledges (subs 82 – 83) that it must "provide some evidence to satisfy the Court in a Class 1 appeal that consent should be granted on the merits", but submits that it bears no "strict, legal burden", and (sub 84) that it "bore no onus of proof to show what a reasonable dwell time was. Indeed if an onus did exist, that onus fell upon the RMS as the third party intervenor seeking to have imposed a condition of consent". To dismiss the Class 1 appeal on the basis of applicant onus was an error on a question of law. 3. The Council comments (sub 45) that "where the evidence of the Appellant was inadequate to support approval; and the evidence of the RMS was inadequate to support refusal; the Commissioner's reference to 'onus' merely means that approval is not the default position". 4. The Council also notes (sub 46) the appellant/applicant's acceptance that it bears at least a persuasive onus, so the Commissioner's conclusion of "dissatisfaction" with the evidence does not disclose an error. 5. RMS notes that the application nominated a "dwell" time of 10 seconds, later amended to 45 seconds, and that RMS proposed a condition specifying "alternate" times (subs 37 – 38). In dealing with the "onus" question the Commissioner did not impose a "strict burden of proof" upon the applicant, and, in any event, the applicant, on appeal, has misstated the current state of the law on "onus". The learned Commissioner found that neither the applicant nor RMS provided sufficient evidence upon which he could reach a decision. 6. In its reply submissions the appellant/applicant says (subs 67 – 69): 67. The applicant has no onus of proving that the RMS draft condition of consent was satisfactory or unsatisfactory. That onus lay fairly and squarely with the RMS and if it failed to establish the ground for the condition then consent ought to have been granted without it. ... 68. The Commissioner used language that was plain and unambiguous in [109]. He said "... the onus of satisfying the Court as to the suitability of the application rests with the applicant". 69. In the circumstances, the RMS had the onus of proving that the condition of consent for which it propounded was reasonable – not the applicant. 1. The appellant/applicant also submits (reply sub 101): It was the RMS who sought by way of without prejudice condition that there be a minimum dwell time for the digital advertising sign. In those circumstances the RMS bore the responsibility for adducing the necessary evidence in support of the proposed condition of consent. 1. In his oral submissions, Mr Staunton said on behalf of RMS (at Tp66, LL20 – 26): The appellant's submissions on this point, we say, are contradictory, because their starting proposition is that there was an error by the Commissioner because there is no onus in class 1 matters, but they effectively say there was an onus on the RMS to establish an appropriate dwell time. So their proposition is that there is no onus, yet they say the onus was on the RMS to establish an appropriate dwell time. Consideration Existing use principles 1. The High Court has repeatedly stated that provisions designed to preserve and protect existing use rights are to be as "liberally construed" as their language in its context allows: Parramatta City Council v Brickworks Ltd ("Brickworks") (1972) HCA 21; 128 CLR 1, at 25 per Gibbs J; Dorrestijn v South Australian Planning Commission [1984] HCA 76; 54 LGRA 99, at 105 per Brennan J. 2. In the Court of Appeal, in RAS, McHugh JA (with whom Hope JA and Samuels JA agreed) said (at pp 309 – 310): The object of "existing use" provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because "existing use" provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an "existing use" so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land. 1. The concept of "derogation" is crucial to the "existing use" regime – s 108(3) – and to cases such as the present. 2. The first Chief Judge of this Court, McClelland J, in a Class 1 appeal, Kremer and Associates v North Sydney Municipal Council ("Kremer") (1982) 47 LGRA 209, noted (at 219): By virtue of s. 108(2) the regulations made under that section are incorporated in Interim Development Order No. 60, a deemed environmental instrument under the Act. The effect of s. 108(3) in relation to premises enjoying existing use rights is that such incorporated provisions override the provisions in the interim development order in respect of floor space ratios. The clauses to be found in Pt VI of the Environmental Planning and Assessment Regulation, 1980 dealing with existing uses make it clear that, in the present instance, an increase of 10 per cent in the floor space ratio of the subject premises would be permissible. Since the proposal involves a decrease in the existing floor space ratio, the council's objection on this ground lacks legal substance. 1. In Fabcot, Lloyd J said, at 378: Section 108(3) uses the word "derogate" the ordinary meaning of which is "to repeal or abrogate in part; to destroy or impair the force or effect of; to lessen the extent of; to detract from; to disparage, to depreciate" (Shorter Oxford Dictionary). In the Macquarie Dictionary the word is defined in the sense of "to detract". The relevant provisions of the environmental planning instrument in this case, namely cl 9 and the objectives of the zone, would clearly derogate from the incorporated provisions. Accordingly, those provisions of the local environmental plan have no force or effect. However, it is only those provisions of the local environmental plan which would derogate or have the effect of derogating from the incorporated provisions which have no force or effect. Since the provisions of the environmental planning instrument on which the respondent relied in grounds (1) to (4) of its grounds of refusal derogate from the incorporated provisions, it follows that none of those grounds are relevant. They purport to rely on provisions of the local environmental plan which have "no force or effect" (s 108(3) of the Act). 1. I respectfully also commend Biscoe J for his helpful attempt to draw various "existing use" principles together in a series of points: Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; 165 LGERA 184, at [18] (citations omitted): 18 I would summarise the existing use principles, so far as may be relevant, as follows: (a) existing use provisions in planning legislation are designed to permit continuation of a use of land for the purpose for which it was used immediately before later regulation that prohibited it wholly or partly or upon conditions. The rationale is that it is unjust to deprive an owner of the right to use land for an existing purpose; (b) accordingly, existing use provisions should be as liberally construed as the language in its context allows; (c) in order to reconcile the right of the owner to use land for an existing purpose with the right of the local authority to enforce the conflicting objectives of planning legislation, the courts refuse to categorise the purpose of an existing use so narrowly that natural changes in the method of using land or carrying on a business or industry will render an existing use right valueless. Likewise, the courts refuse to categorise the purpose of an existing use so widely that land or premises could be used for a prohibited purpose that was not part of its use at the time of commencement of the prohibiting regulation. Accordingly, a test has been devised which requires characterisation of the purpose of the land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. The test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. The test is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc, as a class have made of the land; (d) a statement of the purpose for which land is being used is a description or characterisation of what is being done with or upon the land, not an account of the motives of the persons involved in that activity; (e) land may be used for more than one purpose. If activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then the genus may properly be regarded as describing the purpose of the use. If they are not, then the only conclusion may be that the land has been used for more than one purpose; (f) the task is always to categorise the purpose (or each purpose) to which premises have been put; (g) that involves an inquiry into what, according to ordinary terminology, is the appropriate categorisation of the purpose of the use. A useful criterion to apply is that which would appeal to practical minds as appropriate in the context of town planning legislation; (h) in determining whether a use is protected by existing use provisions, there are two distinct steps. First, identify the purpose for which land was being used as at the date of the later planning regulation which prohibited that use. The land may continue to be used for that purpose. Secondly, identify whether the use of the land thereafter is generally for the same purpose; (i) the design or form of a building is not determinative of its use. For example, a building might be constructed of units which are capable of residential use. But if the units are used for professional offices, the use would not be a residential flat building; (j) categorisation of uses is a matter of fact and degree and borderline cases will inevitably arise; (k) a use can naturally evolve over time and changes in the method of operation of a particular category of use will not deny existing use rights. 1. In Jojeni, a case to which the learned Commissioner referred in this case, but for a different reason (at [30], set out in [60] above), Leeming JA said of the "existing use" provisions in the EPA Act (at [91], and [103] to [106]): 91 The Council sought to defend the substance of the result reached by the primary judge by a notice of contention that the effect of s 109B of the Environmental Planning and Assessment Act was to deprive the appellant of all existing use rights. ... ... 103 Thus, although the emphatic statutory language in s 109B(2)(c) and (3) was relied on by Council, in fact these provisions are the key to resolving the question of construction arising on the notice of contention. The effect of s 109B is not to alter the class of uses which are defined to be "existing uses" by s 106. After all, s 109B is not expressed to prevail over s 106, in contrast with its relationship with ss 107 and 109, as stated in s 109B(2)(c). 104 ... As between the definition of "existing use" in s 106 and the newly inserted s 109B, the former is the leading provision and the latter does not subtract from the class of uses which are existing uses. Section 109B far from achieving that result instead provides clarity as to the absence of effect of all environmental planning instruments upon all such existing uses. It does so by providing an additional immunity for carrying out development. 105 ... The fact that a degree of flexibility of approach is required when reading the definition of "existing use" with the substantive provisions is scarcely unusual ... 106 ... The Court was not taken to any subsequent case endorsing Council's construction, whilst there are many later cases in which Council's construction has been rejected, so much so that it could be said in [Cracknell] at [53] that "[t]here is ample authority for the proposition earlier stated that a use pursuant to a development consent protected by s 109B may also be an existing use within the meaning of s 106". 1. I shall set out below ([138]) Craig J's analysis of this "dual regime", in Cracknell, from which Leeming JA (in [106], quoted above) chose not to depart, but, as Mr Hemmings pointed out (Tp48, LL45 – 48), ss 107 and 109B constitute "a dual regime", now "finally confirmed" by the Court of Appeal. 2. The "dual regime" indicates yet again, as Leeming JA noted, that "a degree of flexibility of approach" is called for in all matters of this type. 3. The appellant/applicant in the present case is strongly critical of the approach taken by Brown C, especially as stated by him at par [35] of his judgment (quoted in [60] above), which I will now set out again: 35. I accept that the existing use rights are limited to the use of the structure, that is for displaying signage rather than the structure itself. This has a significant impact on the assessment of the impacts of the proposed sign. In accepting that the signage, rather than the sign structure has existing use rights, the general approach of the council experts that any s 79C assessment must be made on the sign as a new structure and subject to the currently applying planning controls is the correct approach. The proposition that the assessment of any impacts should be addressed as an exercise in assessing the difference in impacts between the existing sign and the proposed sign must be rejected. The Three Key Cases 1. Much of the argument in this appeal concerned the applicability of the three key cases to which the Commissioner referred, and to which I also referred above (at [61]). 2. Chronologically, the first of the three was the Court of Appeal's decision in Carden, which Craig J closely considered in Cracknell. Between those two decisions Pain J decided Stromness. Twenty one years passed between Carden and Stromness, and a further six years passed before Cracknell. 3. Care must be taken to note changes made to legislation over such a long period, and to view each case in the line of authority in light of the then current regime. 4. Clearly, as decisions of either the Court of Appeal (Carden) or judges of this Court (the other two), all three decisions are binding on a Commissioner exercising the jurisdiction of the Court in a planning appeal such as is involved in this case. Individual judges of the Court are bound to follow decisions of the Court of Appeal. 5. Hence, the three cases must now be cited at some length, so that each can be examined in its own context. (1) Carden 1. In Carden (decided in 1985) an Assessor of this Court referred to the then Chief Judge (McClelland J) a question of law arising in a Class 1 appeal. His Honour decided the question in such a way that that appellant must fail, and dismissed the proceedings. The decision was appealed to the Court of Appeal on both its procedural and substantive aspects. 2. The Court of Appeal disposed of the appeal on its procedural grounds, but proceeded to express views adverse to the Trial Judge's reasons on the substantive grounds. 3. The issues before me on this appeal concern (1) whether the "substantive" reasons in Carden are obiter or ratio, and (2) whether they should be followed in the present factual situation. 4. Kirby P said (at 56 LGRA 368): As the matter must be returned to the Land and Environment Court to be determined conformably with the law, and as a member of that Court will otherwise doubtless feel bound to observe the approach offered by McClelland CJ in respect of the substantive matters, I consider that it is both useful and necessary, in the way the appeal has been conducted, for this Court to offer an expression of opinion upon the issues of substance even though they are not strictly necessary for the [appeal] court's orders. I agree with the submission that to do otherwise would be unhelpful, "unduly pedantic" and "not consonant with the due and efficient administration of justice", in which [the Court of Appeal] has its role to play. However, I would confine my remarks in this regard. to the matter first dealt with by Mahoney JA, namely the protection afforded to the appelIants' existing use rights by virtue of the combined operation of s 108(3) ... and reg 54 .... If cl 34 of the Sydney Regional Environmental Plan No 5, were to operate so as to restrict the council's power to give consent under reg 54, it would inevitably "derogate" from the terms of that regulation to the extent of requiring that "there is provided on the site a car parking station" as a condition of the giving of consent. Accordingly, having regard to reg 54, cl 34 of the plan can, by virtue of s 108(3), have no force or effect to that extent. 1. His Honour found that the relevant clause of the relevant Sydney Region Environmental Plan (No 5 – Mandating provision of parking) was derogated from, and could have no force or effect; so a DC could be granted without its observance. 2. Mahoney JA wrote the principal judgment in the case, and McHugh JA agreed with his reasons. 3. Mahoney JA found for the appellant, and went on to say, in the closing paragraph of his remarks on "the procedural issue" (at 370): This leaves undetermined the matters of substance discussed by his Honour. As these matters have been the subject of oral and written argument, I shall refer, albeit obiter, to some of the matters which were argued before this Court. 1. Later, on "the substantive issue", he opined (at 372 – 373): In my opinion cl 34, if it operated to restrict the council's power or duty to give consent within reg 54, would within s 108(3) "derogate from" the terms of reg 54. Regulation 54 empowers the council to consent to the change of an existing use to another use in any case. The effect of cl 34 would be to restrict that power: the consent could be given only where "there is provided on the site a car parking station". The practical result of this would be that, in a case such as the present, the power to consent given by reg 54 could seldom be exercised. This, I think, is a derogation within the prohibition of s 108(3). Consequently, cl 34 has "no force or effect" while reg 54 remains in force. In my opinion, therefore, the council and consequently the Land and Environment Court, was empowered to give consent to the change of user which was sought by the plaintiffs' application. Whether that consent should be granted is, of course, a matter on which I express no opinion. ... In my opinion the appeal should be upheld. The learned judge's order should be set aside. The proceeding should be returned to the Land and Environment Court to be dealt with in accordance with this Court's judgment. (2) Stromness 1. Stromness was a Class 1 appeal decided by Pain J in 2006, and concerned a proposal to redevelop a residential flat building which enjoyed existing use rights. 2. At [24], Her Honour set out the four planning principles, articulated by the then Senior Commissioner of this Court, Dr Roseth, in Fodor, at [17], to inform the assessment of DAs based on existing use rights. 3. Those four principles were expressed in Fodor, at [17], in these terms: Four questions usually arise in the assessment of existing use rights developments, namely: • How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? [Principle 1] While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment. • What is the relevance of the building in which the existing use [sic] takes place? [Principle 2] Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. • What are the impacts on adjoining land? [Principle 3] The impact on adjoining land should be assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable. • What is the internal amenity? [Principle 4] Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights have lower amenity than development generally. 1. At [61], Her Honour noted acceptance by the appellant in Stromness that s 79C applied to the assessment of the proposal, emphasizing that it "had existing use rights which may not be derogated from". Her Honour cited Fabcot, Carden, and Kremer, as well as Brickworks, and RAS ([109] – [113], and [124] – [131] above). 2. The appellant in Stromness argued that Fodor was "wrong in law" and should not be followed, and criticised the principles laid out in that case. The appellant also argued that, if Fodor were found to be correctly decided, the application before the Court should still be approved (see [65] – [73]). The appellant put before the Court some comparisons between the current and proposed buildings ([74] – [76]), and submitted that in its final form the proposed building would have "little additional impact" ([77]). 3. Her Honour said (emphasis added): 78 Cases relied on by the Applicant to argue that existing use rights should be liberally construed, such as Brickworks and [RAS], are concerned with the characterisation of an existing use. This case however concerns an application to build a new building in which to continue an existing use. The existing use right preserved by s 107(1) of the EP&A Act is the right to continue in the existing building given s 107(2)(a) which states that s 107(1) does not authorise reconstruction of a building or work. Section 108 provides that regulations may be made to allow, inter alia, the rebuilding of a building and this is provided by cl 41(1)(c) and cl 44 of the Regulation. There is no entitlement to development consent for a new building, only an entitlement to apply for development consent to rebuild. The parties agree that this development application must be assessed under s 79C albeit in accordance with s 108(3). 79 Section 79C(1)(a) requires that a consent authority must take into account the provisions of an environmental planning instrument. As is clear from s 108(1) and (2) any regulations made pursuant to subsection (1) which enable a development application to be made for the alteration, extension or rebuilding of a building being used for an existing use, are deemed to be incorporated into every environmental planning instrument. The definition of environmental planning instrument is s 4 of the EP&A Act includes SEPPs, REPs and LEPs. Clauses 41 and 44 of the Regulation are therefore considered to be incorporated into the LEP. Section 108(3) then states that no provision of the environmental planning instrument which would derogate from these incorporated provisions allowing, inter alia, the rebuilding for an existing use, can apply. 80 [Her Honour here quoted the passage from Fabcot which I set out in [113] above.] 81 That decision dealt with the application of s 108(3) and is relevant to consider in relation to s 79C(1)(a) which refers to the requirement to take into account an environmental planning instrument and a development control plan when assessing a development application. Issue 3 in the Council's statement of issues (par 11 - contrary to zone objectives) cannot be relied on as it clearly applies the LEP in a way which derogates from the existing use rights, as was found in Fabcot. Issue 2 (excessive height/scale) as stated in the first paragraph of the statement of issues clearly arises in a merits review under s 79C(1)(b) and (c), given the physical surroundings of the site. To the extent that the particulars to issue 2 raise the provisions of the LEP in relation to the height and floor space ratio limits, as the Particulars in the statement of issues do (par 11), these cannot be applied to the development application. Issue 4 raises non-compliance with SEPP 65 and given that s 108(3) applies to environmental planning instruments including SEPPs this issue may also not be maintainable and I will discuss this shortly. 82 In the absence of the usual considerations which apply by virtue of the application of a local environment plan or development control plan, the merit assessment of the development application which must be undertaken under s 79C of the EP&A Act must apply well recognised town planning principles. At par 18 above, the applicable parts of s 79C are set out, that is, s 79C(1)(a)(i), (ii), (b), (c), (d) and (e). While the Applicant argued that cases such as Mobil Oil [Australia v Ku-ring-gai Municipal Council (1990) 70 LGRA 419] (see par 61 above), and Berowra RSL Community and Bowling Club Ltd [v Hornsby Shire Council] (2000) 114 LGERA 345 set out the relevant principles to apply when assessing an existing use, the principles in these cases are broadly that there must be an assessment "in the ordinary fashion" made under s 79C. Given the broad provisions of that section that is general guidance only. Of particular relevance to this case are s 79C(1)(b) and (c) concerning the likely impact of the development on the natural and built environment and the suitability of the site for the development. ... 85 As noted in Fodor by Senior Commissioner Roseth at [16] a number of cases identify what must not be considered in relation to the assessment of development applications relying on existing use rights but are silent on what matters should inform such an assessment. As already stated general town planning principles apply to the assessment of a development application under s 79C. Fodor is an attempt to provide planning principles for the assessment of proposals on land with existing use rights, which can guide that assessment under s 79C. 86 As the planning principles in Fodor are not legally binding it is not strictly correct for the Applicant to argue that they are illegal. The planning principles are intended as guidelines to assist resolution of issues that commonly arise in merits review cases. They must not be applied if they result in the misapplication of the EP&A Act provisions concerning existing use rights, such as s 108(3). Consideration of the Fodor planning principles requires a consideration of what is the appropriate approach to a merits review of a development application for rebuilding relying on existing use rights. Contrary to Principle 2 in Fodor, the Applicant submitted that an existing use rights owner can expect he/she can replace the existing use relied on so that is the initial starting point or "baseline" for a merit assessment. If not, the existing use right will be derogated from. The word "derogate" only appears in s 108(3) in relation to provisions in an environmental planning instrument. 87 The Applicant therefore argued that a merits review for the proposed new building should only be an assessment of the proposed building against what is being replaced. The Applicant is entitled to have its existing use approved, albeit in a new building. That submission is not supported by s 107 and s 108 of the EP&A Act. If s 107(1) and (2) are considered there is no presumption that an existing use which can continue under s 107(1) can be rebuilt (see ss(2)(a)). The Act by virtue of s 108(1) provides that regulations may be made enabling the application for development consent to rebuild a building being used for an existing use. This has been provided for by cl 41 and cl 44 of the Regulation which require that development consent be obtained for the rebuilding. There is no entitlement to a development consent for a rebuilding, only an entitlement to make a development application. No case to which I have been referred has said that in the assessment of a development application to rebuild or intensify an existing use it is a given that the new proposal must be assessed as against what it replaces to determine if it is satisfactory. Principle 2 in Fodor states that where an existing building is proposed for demolition there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. That is correct in my view, given the provisions of the EP&A Act I have outlined. If a merit assessment under s 79C is applied to a new building which is a rebuilding for the purposes of continuing an existing use, it is possible that the existing use holder will not be allowed to build something identical to that which already exists if a merits assessment results in the conclusion that the impacts under s 79C are unacceptable. 88 That is not to say that consideration of the building intended to be replaced is irrelevant to the merit analysis under s 79C. It may well be appropriate depending on the circumstances that the building intending to be replaced is considered, and I consider it is appropriate in this case to do so. The merits assessment is not confined to that comparison only however, it is also necessary to consider the development application more broadly under s 79C. The planning principles in Fodor can assist in that consideration. 89 Principle 1 in Fodor states that it is acceptable to consider the relevant planning instruments as these apply to the area surrounding the proposed development because these determine the nature of development in that area. That principle is not inconsistent with s 108(3) as the Applicant submitted. Care must be exercised, however, against the possibility that such an assessment leads to a de facto application of standards in environmental planning instruments to the existing use rights site. Failure to comply with standards in an environmental planning instrument cannot be a consideration in the assessment of the application based on existing use rights. The same can be said in relation to Principles 3 and 4 but these can clearly otherwise apply to assist in the merit review under s 79C. 90 I do not agree that matters such as the context of the proposed development cannot be taken into account as the Applicant argued when submitting that Mr Ingham's approach was incorrect. If the assessment under s 79C is to be adequate it must consider the proposal in its surroundings, and that is clearly a fundamental part of any analysis required under s 79C(1)(b) and (c). In this case the primary issue is the bulk and scale of the development and consideration of the proposal in its surroundings which would appear necessary given the requirement of s 79C(1)(b) and (c). ... ... 95 SEPP 65 contains design principles which all residential flat buildings in New South Wales should comply with. SEPP 65 is aimed at achieving better designed residential flat buildings. Section 108(3) provides that the provisions of environmental planning instruments, which includes SEPPs, which derogate from the existing use do not have any effect in relation to existing use rights. To the extent that the SEPP contains any prescriptive requirements, these cannot be applied to derogate from the Applicant's existing use rights. Where an environmental planning instrument can inform the merit assessment to be undertaken under s 79C, then an instrument such as SEPP 65 does apply to assist in the merit assessment of a residential flat building. While I agree that s 108(3) prevents the application of SEPP 65 as a basis for refusing an application relying on existing use rights, its provisions can guide a merit assessment as it is raising matters that should otherwise be considered on a merit assessment of a residential flat building under s 79C no matter where it is located. I consider Mr Shiels analysis under SEPP 65 at par 50 is correct in the context of this case in that what is being considered is a rebuilding to enable an existing use to continue in an area where other substantial structures are being built at 38 Fitzwilliam Road and 99 Wentworth Road. I do not consider the application can be refused on this ground, but I do not agree with the Applicant's submission that SEPP 65 simply does not apply. Issue 2 – statement of issues 96 Issue 2 in the statement of issues is the major issue to consider in relation to the merit assessment under s 79C, in that it is clearly the bulk and scale of the building which will impact on the wider surrounding area. The particulars in the statement of issues specify the applicable height and floor space ratio under the LEP but these cannot be applied as a basis for refusal. To the extent therefore this issue requires the building to be considered in its context, that context cannot be a "back door" method by which to apply the development standards in the LEP to the proposed development. 97 While I agree with Mr Ingham that the proposal would be prominent in the location as is the current residential flat building and appear to be somewhat bulkier due to the flat roof across the whole building footprint compared to the existing structure with the double storey gable roof, I consider the Applicant has confined the proposal largely within the footprint of the two buildings it is replacing. That is clear from the plans and the comparison table provided in the Applicant's submissions. Given that it is an application to rebuild, it is appropriate to be mindful of what is intended to be replaced by the rebuilding. If Mr Ingham's view that one storey should be removed is adopted, then I consider that his assessment is a de facto application of the height limits for this zone in the LEP and it is clear that s 108(3) does not allow that approach. (3) Cracknell 1. In Cracknell, Craig J said (some emphasis added): 38 ... Upon their proper construction, the provisions of Div 10 of Pt 4 of the EPA Act seem to me to contemplate that a development consent preserved by s 109B will not always operate such that the use sanctioned by it will engage the provisions of ss 107 and 108. Rather, a preserved consent can operate independently of the latter sections. ... 41 What is preserved by s 107(1) is the continuance of an "existing use". Expressed differently, the subsection preserves the right to continue a use that engages either paragraphs (a) or (b) of s 106. ... 45 Significantly, the terms in which s 107(2) circumscribe the continuance of an existing use do not differentiate between a use so defined by reason of historic user and one that is so defined by reason of user pursuant to a development consent granted prior to commencement of a planning instrument prohibiting that use. Application of the subsection to an existing use of the latter kind is apparent from the reference in s 107(2)(d) to the continuance where that use is "in breach of any consent in force under this Act". 46 Having identified the manner in which the right to continue an existing use is circumscribed or constrained by s 107(2), it seems to me that the provisions of s 108 do not operate as if the provisions of s 107 have no relevance to them. The constraints imposed by paragraphs (a) and (c) of s 107(2) are complemented by paragraphs (a) and (c) of s 108(1). The latter paragraphs identify the subject matter of regulations that may be made to address the limitations imposed by the identically lettered paragraphs of s 107(2). The interrelationship between the two sections indicates that a necessary prerequisite to the exercise of power available under the incorporated provisions is the identification of an "existing use" that has continued and has not been abandoned at the time at which the power is sought to be invoked. 47 Further, it is relevant that the power afforded by s 108(1) to make regulations that constitute the incorporated provisions, is a power to be exercised "for or with respect to existing use". When this and the preceding provisions to which I have referred are taken into account, it is inconsistent with a purposive interpretation of ss 106, 107 and 108 to determine that a use once categorised as an "existing use", within the meaning of s 106, but which has been abandoned within the meaning of s 107(2)(e), is nonetheless a use which engages the operation of s 108 and thereby the powers identified in the incorporated provisions. Yet, that is the consequence of the submissions made on behalf of the Architects. 48 My interpretation of the statutory provisions leads me to conclude that there are two different, albeit related, concepts or rights identified within Div 10 of Pt 4 of the EPA Act, directed to the entitlement lawfully to continue to use land when an environmental planning instrument has intervened to prohibit that use. The first concept or right is that directed to an "existing use" as defined. The provisions of ss 106, 107 and 108, read as an integrated 'code' directed to that concept or right, both limit the entitlement to continue an "existing use" and also provide for the manner in which that use, as continued, may be subject to change either in its physical dimension (its expansion or intensification or the extension or rebuilding of a building used for an existing use), or in the very nature of the activity itself (a change of use). Continuity of user is essential not only to maintain the status of the use as an "existing use" but also to maintain the entitlement to seek development consent in accordance with the incorporated provisions. 49 The second concept or right is that to which the provisions of s 109B are directed. The obvious purpose of the section is to preserve an operative ("in force") consent. The consent continues to operate because it is an instrument under the EPA Act (s 3 Interpretation Act 1987) and according to its own terms. The preservation of the consent is independent of the provisions of s 107: s 109B(2)(c). 50 Undoubtedly, there will be many circumstances in which the use sanctioned by a consent preserved under s 109B also falls within the definition of "existing use" in s 106. In that event, the continued categorisation of the use as "an existing use" is subject to the provisions of s 107. If that use is abandoned within the meaning of s 107 it will lose its status as an "existing use" and so will not engage s 108 and the incorporated provisions. 51 Nonetheless, the preservation of the consent by s 109B ensures that the use it sanctions may be carried out at any time, so long as this is done in accordance with the terms on which the consent was granted. What the section does not do is to impose upon that consent either the restrictions created by s 107(2) or give rise to any entitlement created by or pursuant to s 108, if the use authorised by the preserved consent has lost its status as an existing use. In this regard it is relevant to be noticed that the language of s 109B neither expressly uses nor impliedly adopts the expression "existing use". 52 The distinction that I have drawn between the rights and limitations applying to an existing use and the right to use land in accordance with an operative development consent, where the use authorised by that consent is prohibited by a current planning instrument, is a distinction supported by authority. The Minister's Second Reading Speech introducing the legislation by which s 109B was inserted into the Environmental Planning and Assessment Act, together with the Explanatory Memorandum published at that time, indicates that the section had "merely declaratory effect" (Auburn Council v Nehme [[1999] NSWCA 383; (1999) 106 LGERA 19] per Handley JA at [15]). It did not create any new right. 53 There is ample authority for the proposition earlier stated that a use pursuant to a development consent protected by s 109B may also be an existing use within the meaning of s 106. A number of the authorities were collected and discussed by Biscoe J in Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 230 at [54] - [57] ... 54 Those observations are consistent with observations by Pearlman J in Auburn Council v Constanti [2000] NSWLEC 194; (2000) 109 LGERA 355. ... 55 In addressing the respondent's defence that its use was protected by s 109B, her Honour said at [48]: "The first matter to be noticed in connection with this case is that s 109B has effect despite anything to the contrary in s 107. If, contrary to the findings I have made, the existing use of the site for the purpose of a service station has been abandoned, or the existing use has been enlarged, expanded or intensified, then s 107 would not operate to preserve the existing use, and thus would not operate to authorise the impugned activity. However, if s 109B applies to the [consents], then a use of the site pursuant to those consents would authorise the impugned activity, despite any abandonment or enlargement, expansion or intensification." 56 The different role performed by the statutory provisions directed to "existing use" on the one hand and the provisions of s 109B on the other are clearly recognised in her Honour's judgment. It is that same difference in role performed by those provisions that I have endeavoured to identify. 1. His Honour then said (at [58]): 58 My determination that s 108 of the EPA Act and the provisions of Pt 5 of the Regulation are not, in the circumstances of this case, engaged, strictly renders it unnecessary to determine the second issue earlier identified, namely whether development standards imposed by LEP 2000 apply to the determination of the development application. As the matter has been argued and against the possibility that I am wrong in determining the present issue, it is appropriate that I address the development standards issue. 1. His Honour cited (at [62]) Kirby P's judgment in Carden (at 368 – see [127] above) on the meaning of "derogate", and went on to explore the issue of whether some development standards in the there relevant LEP "derogated" from cl 41(1)(d) (see [46] above). 2. His Honour gave close consideration to cl 41(1)(d), and relevant clauses of the LEP ([63] – [73]), saying (at [70] – [71]): 70 The extent to which the land use table is qualified by other provisions of a planning instrument must be considered when addressing the application of cl 41(1)(d). Relevantly, if another provision of the instrument constrains permissibility of a nominated form of land use to one having particular characteristics, development of that kind which lacks those characteristics cannot be identified as a use that may be carried out with development consent under the Act (cp Woollahra Municipal Council v Carr (1985) 62 LGRA 263 per Priestley JA at 267 and McHugh JA at 269). 71 The proposition can again be illustrated by reference to the provisions of cl 18 of LEP 2000. Item (3) of the Table to that clause identifies those forms of development that are "allowed only with development consent". They include a number of development purposes that fall within the definition of "residential development" contained in Sch 3 to the instrument. 1. His Honour then said (at [74] – [86] – emphasis added): 74 The entitlement under cl 41(1)(d), in that form, to change to a use, including a prohibited use, was, in substance, the form which the incorporated provisions had taken since commencement of the EPA Act in 1980. It will therefore be apparent that the purpose of the 2006 amendment to the Regulation was to effect a significant alteration to the power to change any existing use to another use. As Mr McEwen submitted, the former provision was permissive and broadly expressed, as demonstrated by the power to change a use to a prohibited form of development. Any provision in a planning instrument having the effect of restricting the exercise of power by reference to constraints imposed by development standards would obviously derogate from the provisions of a clause so broadly expressed. 75 By contrast, the words of the present cl 41(1)(d) are restrictive and narrow, such that a provision of a planning instrument having the effect of prohibiting development will not derogate from the provisions of the clause. Indeed, the requirement of cl 45 to obtain development consent to a change of use coupled with the limitation expressed in cl 41(1)(d) authorising such a change "but only if" the proposed use is one for which development consent can be granted, are requirements that mandate the consideration of all provisions of the applicable planning instrument in order to determine permissibility. 76 The Architects submit I am bound to determine that the development standards imposed by cl 19 of LEP 2000 derogate from cl 41(1)(d) and cl 45 of the Regulation by reason of the decision of the Court of Appeal in Carden v Willoughby Municipal Council. I do not accept that submission. In Carden the Court was concerned to determine whether the provision of a regional environmental plan that prohibited the grant of development consent on land in question "unless there is provided on the site a car parking station", derogated from the incorporated provisions in the form which they then took. The use of the land at the time at which development consent was made to change that use was an "existing use" within the meaning of the EPA Act. 77 The Court of Appeal determined that the clause of the regional environmental plan prohibiting consent unless a car parking station was provided "operated to restrict the council's power or duty to give consent" under the regulation then authorising the change of an existing use to another use. As a consequence, the provision of the regional plan would derogate from the terms of the regulation, within the meaning of s 108(3) (per Mahoney JA, McHugh JA agreeing, at 372). However, the incorporated provision from which the provision in the regional plan was held to derogate was in different terms to the current provisions of the Regulation. The incorporated provision then applicable was cl 54 of the Environmental Planning and Assessment Regulation 1980 (now repealed). Clause 54 relevantly provided: "54(1)For the purposes of section 108(1)(b) of the Act, an existing use may, with consent under the Act being obtained therefor, be changed to another use, including a use which would otherwise be prohibited under the Act." 78 It will be seen that, in substance, that provision was to similar effect as cl 41(1)(d) prior to its amendment in 2006. Unsurprisingly, where the provisions of a planning instrument imposed a prohibition upon development, either in conditional or absolute terms, such provisions were seen to derogate from an incorporated provision that allowed a change of use, with consent, whether or not that change of use was prohibited. 79 For the reasons earlier indicated, the proper interpretation of the present Regulation leads me to conclude that the determination in Carden no longer has application to the present form of cl 41(1)(d), at least as it is sought to be applied to the application of development standards imposed in a planning instrument. I add this qualification because on one view, the prohibition against consent imposed by the regional plan considered in Carden was not a provision that specified a requirement or fixed a standard in respect of an aspect of development being considered and was therefore not a development standard within the meaning of the EPA Act (cf North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 [LGRA] 222). However, it is unnecessary to express any final view as to whether this was the case: it is sufficient for present purposes to distinguish Carden on the basis that the provisions of the incorporated provision there considered (cl 54) differ significantly from the current provision. ... 84 By imposing development standards, the planning instrument does no more than stipulate the manner in which a use "may be carried out with or without development consent under the Act". So understood, the provisions of cl 19 of LEP 2000 do not "destroy or impair the force or effect of ... or lessen the extent of ... or detract from" the provisions of cl 41(1)(d) ([Fabcot] at 378). 85 In reaching the conclusion that I have, I do not overlook the provisions of cl 46 of the Regulation. Although that clause has earlier been quoted, I repeat its provisions: "Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45." 86 While consent may be sought to extend a building used for an existing use (cl 43) or for the rebuilding of the building presently put to that use (cl 44) at the same time as consent is sought to change the use of the building, I do not consider that cl 46 aids the ultimate contention made by the Architects. Clause 45 imposes the requirement to obtain consent for a change of use. However, the power to grant that consent is circumscribed by cl 41(1)(d). Therefore it seems to me that even if a 'combined application' was made, the use of a new building for its existing use could not be changed unless the new use was one that may be carried out with or without development consent under the Act. The limitation applying to such a consent that I have earlier addressed remains applicable. (4) Discussion of the three cases 1. Commissioner Brown noted (at [32]) that the applicant/appellant relied upon Carden, but he accepted the Council's submission that Carden "had not been followed in more recent times for good reason", and cited (in [32] – [34]) pars [76] and [79] of Cracknell, and pars [87] and [88] of Stromness. 2. For completeness, I note that the learned Commissioner quoted [76] of Cracknell in full, but regrettably omitted from [79] Craig J's clarification that he was, in fact, distinguishing Carden, in that case, because of a change in the regulation. Brown ASC also omitted, from his quotation of par [88] of Stromness, Pain J's statement that the s 79C consideration can be "assisted" by the Fodor planning principles. Nothing in this appeal turns on those omissions. 3. Argument in this appeal focussed on the view the Commissioner took of Carden. 4. The analysis I have quoted from Carden ([124] – [131] above) was relied upon by Lloyd J in Fabcot (see [113] above), at pp376 – 377, and again in Multistar Pty Ltd v Minister for Urban Affairs and Planning [No 2] (2000) NSWLEC 242; 111 LGERA 319 (see [37]). 5. His Honour made no mention in either case of any opinion or consideration, on his part, that the remarks by two eminent appellate judges, in which a third concurred, should be considered obiter dicta, despite the caveat Mahoney JA had added to his judgment to that effect. 6. Lloyd J found at least persuasive force in what the judges said in Carden, and it has been followed in this Court on several other occasions. 7. On the task of finding the ratio decidendi of a case, and thus assessing whether particular judicial statements have binding force or effect (as distinct from persuasive, or informative, or no, force or effect), it is useful to refer to the remarks of McHugh J (then on the High Court) in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) HCA 16; 216 CLR 515, in a negligence context. His Honour said (at [58] – [62]): 58 ... Bryan v Maloney [(1995) 182 CLR 609] covers the present case. If it does, Woolcock must succeed. If it does not, a further issue arises as to whether this Court should hold that those involved in the building of commercial premises owe a duty to subsequent purchasers that is similar to the duty owed by a builder to a subsequent purchaser of a dwelling house. 59 The common law distinguishes between the holding of a case, the rule of the case and its ratio decidendi. The holding of a case is the decision of the court on the precise point in issue – for the plaintiff or the defendant. The rule of the case is the principle for which the case stands – although sometimes judges describe the rule of the case as its holding. The ratio decidendi of the case is the general rule of law that the court propounded as its reason for the decision. 60 Under the common law system of adjudication, the ratio decidendi of the case binds courts that are lower in the judicial hierarchy than the court deciding the case. Moreover, even courts of co ordinate authority or higher in the judicial hierarchy will ordinarily refuse to apply the ratio decidendi of a case only when they are convinced that it is wrong. 61 Prima facie, the ratio decidendi and the rule of the case are identical. However, if later courts read down the rule of the case, they may treat the proclaimed ratio decidendi as too broad, too narrow or inapplicable. Later courts may treat the material facts of the case as standing for a narrower or different rule from that formulated by the court that decided the case. Consequently, it may take a series of later cases before the rule of a particular case becomes settled. ... If later courts take the view that the rule of a case was different from its stated ratio decidendi, they may dismiss the stated ratio as a mere dictum or qualify it to accord with the rule of the case as now perceived. 62 What then is the ratio decidendi of Bryan v Maloney? That question can be answered only by examining their Honours' reasoning ... 1. In Ying v Song [2009] NSWSC 1344, Ward J (as Her Honour then was) said (at [19]): ... I also note that it has long been the case that the weight accorded to obiter dicta will vary depending on the circumstances in which those dicta fell and that considered dicta of appellate courts, though not strictly binding on courts in a lower or equal position within the judicial hierarchy, must be afforded great weight and should be departed from only with the greatest of caution. 1. Her Honour went on to quote (at [21]) what was said by the Hon Dyson Heydon, now retired from both the Court of Appeal and the High Court, in an article "Limits to the Powers of Ultimate Appellant Courts" (2006) 122 LQR 399, at 415, note 114): A mere passing remark or a statement or assumption on some matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. A statement of this kind has judicial weight nearer to that of a ratio decidendi than an obiter dictum. 1. Ward J noted (in [22]) that Heydon had also noted, in the article cited : The attention to be paid to a statement on a point of law by an unquestionably great judge will vary with the circumstances in which it was made – whether it was made in the course of argument in open court while dealing with an example far removed from the case in hand; or made during an application for leave or special leave to appeal; or made in argument to counsel during an application for ex parte relief; or made in an interlocutory unreserved judgment; or made in a judgment in a case in which the loser was not represented, or argued by a litigant in person, or argued by very incompetent counsel; or made in an obiter dictum very far removed from either the core of the case or the arguments of the parties; or made in a case in which no party argued that the proposition was wrong. 1. Many very senior judges of superior courts, including appellate courts, have made comments warning judges always to take serious note of significant dicta, if not to consider such dicta persuasive, or even binding. Ward J cites many examples in Ying v Song, at [20]. 2. Her Honour commented (at [25]): ... a judge ought not to depart from the well-considered dicta of an intermediate appellate court unless convinced that it is plainly wrong ... 1. The substantive remarks in Carden, even if they may be correctly described as obiter dicta, should, therefore, always be given serious weight, especially where they can be shown to be clearly on point. (5) Findings 1. In the present case, Brown ASC accepted a submission that Carden was not on point. 2. He did not say (at [32]), that it was wrong; nor did he seek to distinguish it, as Craig J had done; but he chose not to follow it in all the circumstances of this case (including the statutory and regulatory regime) of this case. 3. No issue arises regarding the law of precedent, and I consider that the learned Commissioner was correct in his approach, including in his much-criticised par [35] (quoted in [60] and [118] above). 4. As there is no legal error in the view he took of the relevant line of authority, and the applicability or not of the individual cases in it to the matter before him, it follows that grounds 1 to 6 of this appeal must fail. 5. I turn now, therefore, to consider ground 7. The question of Onus 1. Ground 7 should be restated: The Commissioner erred in law by assessing the application on the basis that the applicant had an onus of satisfying the Court as to the suitability of the application: [109]. 1. Mr Tomasetti put this ground to the Court (Tp39, LL14 – 17, and p40, LL24 – 27) in these terms: The question arises as to whether or not the Commissioner was right to say that the onus of satisfying the Court as to the suitability of the application rested with the applicant, insofar as it extended to a dwell time proposed by an intervener in the proceedings. ... The draft guidelines suggested a 10 second dwell time would be appropriate. The applicant acknowledged those draft guidelines and said they would accept a 45 second dwell time, it was for the RMS to establish what was appropriate. 1. I have already briefly summarized the competing submissions on this ground (see [101] – [108] above). 2. It is appropriate to retrace some relevant history. 3. The now Chief Judge of this Court authored an article, published in April 1986 (60 ALJ 2015), which was quoted by Stein J in Nesbitt v Warringah Shire Council ("Nesbitt" – unreported 10021 of 1986, 10 September 1986). The learned author had argued that a developer should bear the burden of proof that his DA should be approved. Stein J commented (at [(5)]): ... All three parties before the Court agreed that there was no special onus or burden of proof placed upon any party in the proceedings. I think this is generally correct. It is, however, for the applicant for consent to satisfy the Court that consent ought be granted. Nevertheless, I do not want to be seen as laying down any rule regarding this question since the matter was not sufficiently argued before me. 1. In North Sydney Municipal Council v Parlby ("Parlby" – unreported 10613 of 1985, 13 November 1986), a s 56A appeal concerning the decision of an Assessor of the Court upholding a SEPP 1 objection, Stein J held that deciding such objections required the Council (or the Court) to be satisfied of the answers to 4 questions, and said (p8): If each of the answers to questions 2, 3, and 4 is in the affirmative, (in favour of the applicant who bears the onus), then the merits should be addressed. 1. In Ashland Chemicals Australasia v Wyong Shire Council ("Ashland" – unreported 10668 of 1988, 1 October 1989), Cripps J said: "the onus is on the developer to establish that the activity, for which [DC] is sought, is permissible, and not prohibited". 2. In J R and E G Richards (NSW) Pty Ltd v Scone Shire Council ("Richards" – unreported 20249 of 1994, 24 November 1995), Stein J appeared to harden his view – "the applicant assumes an onus of proof, namely of establishing on the balance of probabilities and on the basis of all the evidence before the Court that it is appropriate to grant the approval which it seeks". 3. In Zhang v Canterbury City Council ("Zhang") [1999] NSWLEC 209, a s 56A appeal, Talbot J noted (at [26]) that "it was for the applicant to show why this particular brothel should be allowed" in the circumstances of that case. 4. At [36], His Honour said: The question of onus does not strictly arise in order to determine whether the Commissioner fell into error in the application of the provisions of the DCP. That issue will be dealt with separately in regard to an argument raised by Mr Davison in respect of the general attribution of onus in class 1 proceedings. 1. His Honour referred (at [37]) to Nesbitt, Richards, and Ashland, and went on to say (at [39] and [46]): 39. I agree that if the Commissioner's finding means that the council bore an onus to produce evidence that the application should be refused rather than that the applicant establish that she was entitled to consent, then he was in error. Although the reasons in his judgment suggest that he fell into such an error in relation to the application of the provisions of the DCP, it is not altogether clear what reasoning he applied generally in regard to the onus of proof. If that was the only ground of appeal, it has not been made out sufficiently to justify upholding the appeal. ... 46. He also fell into error by determining the application on a basis which required the council to discharge an onus of proof that it did not bear. 1. The Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589; 115 LGERA 373 did not consider the onus issue (see [44]). 2. In Moussa v Owners Corporation of Strata Plan 65404 & Ors ("Moussa") [2007] NSWLEC 807, Jagot J was dealing with Class 2 and Class 4 proceedings together, and noted (at [130]): Proceedings No 20096 of 2007 are subject to ss 38 and 39 of the Court Act. The rules of evidence did not apply to those proceedings and the applicant was not subject to any formal burden of proof. In proceedings No 40097 of 2007 the rules of evidence applied and the applicant, as the party who sought declarations and orders, carried the onus of proving all facts necessary to support the relief. 1. In Wehbe v Pittwater Council [2007] NSWLEC 827, Preston Ch J said, in the context of a SEPP 1 objection (at [38]): First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see [Parlby] ... 1. In Iramoo Flyer Pty Ltd v Berrigan Shire Council [2008] NSWLEC 255, a Class 1 costs matter, the respondent Council asserted a failure by the applicant to "address the main issue" in the case. Pain J said (at [28]): While the Council relied on [Richards] to argue that the Applicant bore the onus of proof it is more accurate to say that an applicant who wishes to obtain development consent must address all the relevant issues in order that the Court can be properly informed about the decision it must make. A failure to address a relevant issue may give rise to a finding of unreasonableness in particular circumstances. 1. Her Honour made a partial costs order against the applicant. 2. In Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 5) [2010] NSWLEC 109, on another costs application, Pain J said (at [15]): As identified in [Zhang] at [37], the Applicant had the onus of proving that it should obtain development consent. That means it should produce the necessary information to support its application and it failed to do so. ... 1. In Warkworth, the Court of Appeal (Bathurst CJ, Beazley P, and Tobias AJA) said (at [111] and [112]), in dismissing an appeal from this Court: 111 At the time of the attempted reliance on Mr Parnell's second affidavit, Warkworth and the Minister knew precisely what matter had been put in issue. ... 112 The essential point, however, is that if evidence is required to meet an issue, the party asserting the factual basis for the issue raised bears the responsibility for adducing the necessary evidence. It is not sufficient to expect that the underlying basis of an opinion would be revealed in cross-examination. Nor was the Association's failure to cross-examine the experts productive of procedural unfairness. The parties were given an opportunity to adduce evidence on the issue. A party's failure to adduce relevant evidence does not give rise to a failure to afford procedural fairness. ... 1. In Forgall Pty Ltd v Greater Taree City Council [2015] NSWLEC 61; 209 LGERA 160, Preston Ch J referred to Warkworth, saying (at [7] and [78]): 7 Forgall asserted that its proposed development was consistent with the relevant zone objectives and hence was not prohibited but instead was permissible development to which consent could be granted. As the party asserting the factual basis for this issue, Forgall bore the responsibility for adducing the necessary evidence to establish the issue. Forgall and the Council were given adequate opportunity to adduce whatever evidence they wished to adduce on the issue. At the end of the hearing, however, the Commissioner found that Forgall had not adduced sufficient evidence to establish the issue. By way of illustration, the Commissioner noted that one piece of evidence that Forgall did not adduce was a final landscaping plan. Forgall's failure to adduce relevant evidence did not give rise to a failure on the part of the Commissioner to afford procedural fairness to Forgall. ... 78 Establishing that Forgall's proposed development was not prohibited required establishing that the development was not inconsistent with the objectives of the Rural General Zone of relevance to the particular case. Evidence was required to establish this issue. Forgall, as the party asserting the factual basis for the issue, bore the responsibility for adducing the necessary evidence to meet the issue: see [Warkworth] at [111]. 1. The appellant/applicant fairly conceded (subs 82 and 84) that it had an obligation to satisfy the Court that consent should be granted on the merits. However, Mr Tomasetti submitted that the line of authority I have just traced does not impose "a strict, legal burden" on the applicant for consent, but that some onus fell upon the RMS as the third party intervenor seeking to have imposed a condition of consent. 2. Whether or not we define the word "onus" in its strictest sense, the position taken by the appellant seems to apply an unacceptable double standard. 3. For his part, the learned Commissioner did not hold any party to a "strict burden of proof", but expected each party to take responsibility for submitting to the Court evidence probative of its case on consent and/or conditions. He found both the applicant and RMS deficient in this respect. 4. That was the correct approach, and I find no error in his handling of this issue. Conclusion 1. As I have found no merit in any of the appellant's seven substantive grounds, the appeal should be dismissed. The Court has no need, therefore, to discuss the possibility of some "exclusionary" remitter (grounds 8 and 9). Orders 1. The appeal is dismissed. 2. The appellant is ordered to pay the costs of both respondents, on a party-party basis, as agreed or assessed, according to law. 3. The Court Books are returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2016