Holds & Ors v The City of Port Adelaide Enfield & Ors - [2011] SASC 226

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application for Judicial Review)
HOLDS & ORS v THE CITY OF PORT ADELAIDE ENFIELD & ORS
[2011] SASC 226
Judgment of The Honourable Justice Kourakis
16 December 2011
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
The second and third defendants (the defendants) obtained original development consent from the first defendant (the Council) on 18 November 2005 for a two-storey dwelling – following construction the plaintiffs’ complained to the Council regarding the degree to which the development overlooked their properties – a further development application varying the original development plans was lodged by the defendants – the variation plans ameliorated degree of overlooking to the plaintiffs’ properties and provided for greater structural support – Council approved the variation application on 19 April 2010 – plaintiffs’ brought judicial review proceedings to challenge validity of the consent to the variation application.
Held – application for judicial review dismissed – validity of Council’s decision to grant the variation consent upheld. It would be manifestly unreasonable not to approve a variation which sought to ameliorate the degree of overlooking allowed by the original approval.
Whether the Council’s finding that the development was not seriously at variance with the relevant provisions of the Port Adelaide and Enfield City Development Plan was “irrational, illogical and not based on findings or inferences supported by logical grounds.”
Held – in the circumstances of this case it cannot be said that the Council’s findings were irrational or illogical.
Development Act 1993 s 35(2), s 39; Development (Assessment Procedures) Amendment Act 2007 s 11, referred to.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Courtney Hill Pty Ltd v South Australian Planning Commission (1990) 59 SASR 259, discussed.
Kirk v Industrial Relations Commissioner of New South Wales (2010) 239 CLR 531; Karytinos v Corporation of the Town of Walkerville (2010) 106 SASR 74; Chadha v City of Unley [2003] SASC 99; Airport Farms Pty Ltd v District Council of Lower Eyre Penninsula (1997) 69 SASR 472, considered.

HOLDS & ORS v THE CITY OF PORT ADELAIDE ENFIELD & ORS
[2011] SASC 226
Civil:

Kourakis J: This is a challenge, brought by way of judicial review, of a development approval given by the first defendant (the Council).
The second and third defendants are the registered proprietors of the land at 7 George Street, Largs Bay. I will refer to them jointly as the defendants. George Street runs in a north-south direction immediately to the east of the Esplanade. On 18 November 2005 the defendants obtained development approval from the Council to construct a two storey dwelling (the dwelling) on their land. I will refer to that development approval, its associated application and development plan and building rules consents as the original approval, application and consents respectively. The dwelling, as approved, included a first floor deck. It was substantially completed by about July 2006. The first and second plaintiffs, Mr and Mrs Holds (the Holds), are the registered proprietors of land which adjoins the defendants’ land immediately to the south. The third plaintiff, Ms Sims, is the registered proprietor of land on the Esplanade to the north-west of the defendants’ land and of other land to the north on Kanowna Street, which runs in an east-west direction.
Soon after the dwelling was built, the plaintiffs complained to the Council about the degree to which it overlooked their properties. They claimed that the dwelling impacted adversely on their privacy. The plaintiffs obtained a report from an architect, Mr Peter Hignett. He reported that the degree of overlooking had seriously affected the amenity of the locality of the dwelling. The Council commissioned an investigation and report by another architect, Mr John Hipper. Mr Hipper’s report described the degree of overlooking as “severe”.
The construction of the dwelling was a Category 1 form of development. For that reason the plaintiffs were not notified of the development application nor did they have right to be heard on it before the Council or to appeal its approval to the Environment Resources and Development Court. The plaintiffs have never challenged the original approval by way of judicial review
On 12 August 2009, with the encouragement of the Council, the defendants lodged a further development application in respect of the dwelling. The application was headed “Planning Application Form (Only)”. The proposed development was described as “Balcony rectification works and installation of balcony screening and additional screening. Refer dwelling application number 040/3101/04.” Reference was made on the form to the original development application. The application sought approval for additional screening of the deck which would reduce the degree of overlooking, and for the installation of stronger structural support for the deck to bear the weight of the additional screening. The Council treated the application as an application to vary the original approval. The Council approved the variation on 19 April 2010 (the variation approval). It is the validity of the variation approval which is challenged in these proceedings.
The defendants commenced building work pursuant to the variation approval in August 2010 and completed the works in early November 2010.
On 19 October 2010 the plaintiffs initiated these proceedings by filing a summons for judicial review. Permission to proceed was given on 24 November 2010. The grounds of review alleged a failure to take into account relevant considerations, the taking into account of irrelevant considerations and manifest unreasonableness. On the hearing before me, senior counsel for the plaintiffs abandoned the relevant consideration grounds and relied only on the unreasonableness grounds. He contended that the manifest unreasonableness of the grant of approval was probably occasioned by the failure to give appropriate weight to the considerations identified in the other, abandoned, grounds.
The burden of the plaintiffs’ case is that assessed against the provisions of the Port Adelaide and Enfield City Development Plan (the Development Plan 2009), as at February 2009, the development is seriously at variance with it because of the degree of overlooking and that it was manifestly unreasonable of the Council to conclude otherwise and approve the variation.
I find that the proposed development authorised by the variation approval is not seriously at variance with the Development Plan 2009. The plaintiffs’ contention must also fail, even if it were accepted that the proposed development was seriously at variance with the Development Plan 2009, because it ignores the right of the defendants, pursuant to the original approval, to construct a dwelling with even less screening and does not properly take into account the special provisions of s 39 of the Development Act 1933 (the Development Act) governing variation applications. Having regard to the original approval it would, in my view, be manifestly unreasonable not to approve a variation which sought to ameliorate the extent of overlooking allowed by the original approval.
Moreover, the consideration to which I have just referred shows that there is no practical utility in quashing the variation approval. To do so would simply leave the original approval in place, thereby allowing a deck which impacted even more severely on the plaintiffs’ premises than the one constructed in accordance with the variation approval. That circumstance, together with the plaintiffs’ delay in bringing these proceedings at a time when the construction of the deck with the additional screening was well underway militates against allowing any extension of time in which to bring these proceedings. For that reason also, I would dismiss the plaintiffs’ application.
I elaborate my reasons below.
Satisfaction of Jurisdictional Fact
The applicability of the Wednesbury unreasonableness ground to the plaintiffs’ complaint, and the precise test for invalidity, were not fully explored in argument before me. Section 35(2) of the Development Act imposes a jurisdictional limit, or at least a limitation on the power of the relevant planning authority, which precludes it from granting consent to a development which it determines is seriously at variance with the applicable Development Plan. That assessment involves an evaluative factual judgment.
The judicial review of determinations of jurisdictional fact was recently considered by the High Court in Minister for Immigration & Citizenship v SZMDS (SZMDS).[1] SZMDS was decided in the context of Commonwealth legislation and the Constitutional context which includes the availability of constitutional writs. However, given the constitutionally entrenched judicial review jurisdiction of this Court, as explained in the decision of the High Court in Kirk,[2] it is likely that the same approach is required at a State level. The Wednesbury unreasonableness standard is more aptly applied to an alleged abuse of power in the exercise of a discretion than to the determination by a tribunal of a jurisdictional fact.[3] When a finding of jurisdictional fact is challenged, the relevant question appears to be whether the determination was “irrational, illogical and not based on findings or inferences of facts supported by logical grounds”.[4] A finding of illogicality and irrationality must not be made lightly, and not every lapse in logic will give rise to a jurisdictional error.[5] However, if a decision is so tainted, a finding that the decision was reached in good faith will not save it from invalidity.[6]
[1] (2010) 240 CLR 611.
[2]    Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531.
[3]    Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 624 [39] (Gummow A-CJ and Keifel J), 647 [128] (Crennan and Bell JJ).
[4] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 998 [38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
[5]    Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625 [40] – [41] (Gummow A-CJ and Keifel J), 647 – 648 [130] (Crennan and Bell JJ).
[6]    Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625 [40] – [41] (Gummow A-CJ and Keifel J), 647 – 648 [130] (Crennan and Bell JJ).
A relevant planning authority has an obligation to assess a proposed development against the applicable Development Plan. Therefore, in every case in which approval is given it can be taken that the relevant authority has, at least implicitly, determined that the proposed development is not seriously at variance with the Development Plan. It should also be observed that the power to approve a development is not conditioned on satisfaction that the development conforms with the Development Plan. It is only when the relevant authority is satisfied that any variance with the Development Plan is serious, that the jurisdictional limit is enlivened. It might, for practical reasons, be more difficult to show that a relevant authority unreasonably or irrationally failed to reach a state of satisfaction, than it is to show that it was irrational or unreasonable to reach that state of satisfaction.
In any event, for reasons which are developed below, the plaintiffs’ action must be dismissed even on the more demanding test of illogicality and irrationality applicable to the determination of jurisdictional limits.
The Original Approval
The Council granted the original approval for a dwelling constructed in accordance with the plans submitted with the original application. Building rules consent was given on 8 November 2005. The defendants were notified that they had development authorisation on 18 November 2005.
The plans submitted with the original application show a two storey dwelling with a deck facing west towards the sea on the upper floor. The floor to ceiling height of each level is 2700 mm. The ground on which the decking support posts stand is shown to be just below the lower floor level of the dwelling itself. The deck is depicted with a 1000 mm high handrail above several strands of steel cable which serve as balustrading. The plans show doors leading from the inside living space of the dwelling to the deck and external stairs climbing to it from the ground.
The original building rules consent specified 120 mm square, F7, perma-pine posts for the support of the deck.
I find that on a proper construction of the original approval it authorised the construction of a dwelling with a usable deck. The size, position and west facing aspect of the deck show clearly that it was intended as a usable space. The provision made in the plans for access to it, handrails and balustrading puts the matter beyond doubt.
For reasons not clear to me, after the Council received complaints from the plaintiffs it took steps to ameliorate the degree of overlooking. It secured the agreement of the defendants to install more effective screening. Engineers were consulted to ensure that the additional screening could be constructed in accordance with the applicable building standards. Investigations undertaken by the engineers for that purpose revealed that the existing supporting posts for the deck were only 90 mm square, and therefore did not comply with the building rules consent. That revelation led to the Council issuing an Emergency Order pursuant to s 69 of the Development Act on 24 April 2008, forbidding the use of the deck.
The variation approval authorised the following changes to the deck. On the north and west elevations, it authorised screening the deck with solid colour bond mini-orb cladding to a height of one metre and fixed louvres above it giving a total screen height of 1500 mm. On its southern elevation, the deck was to be screened by solid colour-bond mini-orb cladding to a height of 1700 mm. On its eastern elevation, the deck was to be clad with mini-orb on either side of the external stair landing. The posts supporting the balcony were specified as 140 mm square, F7, perma-pine posts and the variation approval stipulated stronger anchoring for, and bracing of, the posts.
The evidence, at least inferentially, suggests that the larger posts and stronger anchoring and bracing were necessary to obtain building rules consent because of the more extensive and heavier screening. The evidence does not establish that the posts and bracing specified in the original approval, if they had been properly erected by the builder, could not have supported the deck as authorised by the original approval. The evidence does not establish that the original building rules consent was wrongly given. Insofar as the builder installed smaller posts than those specified in the original approval, the building work plainly required rectification to conform with the original approval, but the builder’s failure did not invalidate the original approval.
Even if it had been shown that the original building rules consent was invalid, that circumstance would not invalidate the original planning consent. It would have the result that the defendants did not have development authorisation unless and until a valid building rules consent was given. However, the original approval is not challenged and there is no challenge to the variation approval on the ground of the invalidity of either the original approval or the original building rules consent.
Building work in accordance with the variation approval commenced in August 2010. The erection of the larger posts and stronger bracing for the deck was completed by about late September 2010. The replacement of the handrail and balustrade wiring with more solid screening pursuant to the variation approval commenced in late September and continued throughout October. By early November only minor painting work remained to be completed. The Emergency Order was lifted on 8 November 2010.
Conforming with the Development Plan
The plaintiffs accepted that the variations moderated the overlooking to some degree. Their complaint is that the variation did not ameliorate the overlooking sufficiently to bring the development into conformity with the Development Plan 2009. They contend that, even as varied, the development is seriously at variance within the Development Plan 2009. I observe here that for the purposes of this submission the plaintiffs proceeded on the premise that the development encompassed by the variation was the deck itself and not just the additional screening and supports. It will be necessary to consider this premise more closely below.
The visual privacy principles of the Development Plan 2009 provide as follows:
Visual Privacy
77Development should protect privacy by minimising direct overlooking from upper level windows and external balconies, terraces and decks to habitable room windows and useable private open spaces of other dwellings.
78    Where development is greater than single storey:
(a)     any upper storey window that directly overlooks the private open space of an adjoining property should be glazed in fixed obscure glass or have window sills a minimum of 1.7 metres above the upper floor level;
(b)     any upper storey balcony should be located and/or designed to avoid directly overlooking the private open space of adjoining properties; and
(c)     the potential for indirectly overlooking the private open space of an adjoining property should be minimised through the use of architectural techniques such as wall angles, protuberances and screens, and other measures such as fencing and screen planting.
Design Techniques (these are ONE WAY of meeting the above Principle)
78.1Direct views from upper level habitable room windows, external upper level balconies, terraces and decks to the habitable room windows or useable private open space of an adjacent dwelling are restricted (assuming a viewing height of up to 1.7 metres above floor level) by:
(a)     permanently fixed translucent glazing in the part of the window below 1.7 metres above floor level; or
(b)     window sill heights of 1.7 metres above floor level; or
(c)     permanently fixed external screens, including wing walls, solid or translucent panels and planter boxes; or
(d)     permanently fixed external perforated panels or trellises which have a maximum of 25 percent openings.
Confining myself to the principles, and leaving aside for now the design techniques, I am prepared to accept that there is some variation between them and the dwelling arising from the degree of overlooking to Ms Sims’ Esplanade and Kanowna Street properties. Despite the additional screening, a person of average height will, if so inclined, have views of the backyard and windows of the rear rooms of Ms Sims’ Esplanade residence. However, I am far from satisfied that the deck, with the additional screening required by the variation approval, is seriously at variance with the Development Plan 2009. The amenity of all residential developments in the locality, including the defendants’ dwelling, must be considered. The objectives and principles of Development Plans are the matrix against which a planning judgment must be made. The screening will effectively obstruct views by persons seated on the deck. Anyone standing on the deck will be clearly visible from Ms Sims’ properties. I am not persuaded that the Council could not logically, rationally and reasonably have been satisfied that there was no serious variance.

Turning to the design techniques, I understand them to provide that there should not be a direct view into the habitable rooms and windows of adjoining premises. A direct view, in the case of a balcony, means any view into a habitable room or window within 15 metres of the balcony. That is not the case with respect to Ms Sims’ properties. The rear room windows are much more than 15 metres away. With respect to the Holds’ property, the solid mini-orb cladding to a height of 1700 mm, effectively restricts any overlooking. The further purpose of the design techniques is to allow adjoining residences some private open space, with a dimension of at least four metres, which is not within 15 metres of the deck. There is a space of these dimensions, and more, available within Ms Sims’ properties at a distance of greater than 15 metres of the deck.
Mr Hipper expresses the opinion in his original report of 8 March 2007 that, to properly allow for the privacy of a residence, the distance away from the vantage point allowed by the design technique should be greater than 30 metres. That opinion may be a reasonable policy position to hold, but it is not the planning policy expressed by the design techniques in the Development Plan 2009. The difference between the Development Plan 2009 and the premise on which Mr Hipper’s opinion is based, significantly undermines the plaintiffs’ case that the Council’s satisfaction that the extent of the variation was not seriously at variance with the Development Plan 2009, was irrational.
I am not satisfied that the deck, as varied, is seriously at variance with the Development Plan. I am, necessarily, also of the view that the Council’s satisfaction as to this matter, assuming that it characterised the variation in a way which encompassed the deck as a whole, was not irrational.
Variations of Development Authorisations
Even if I am mistaken in taking the view expressed in the preceding paragraphs and the deck as a whole is seriously at variance with the Development Plan 2009, the statutory provisions allowing approval of variation applications authorised the variation approval, for the reasons appearing below.
The procedure for the variation of a development authorisation is prescribed by s 39 of the Development Act in the following terms:
DEVELOPMENT ACT 1993 - SECT 39
39—Application and provision of information
…
(6) Subject to this section, a person may seek the variation of a development authorisation previously given under this Act (including by seeking the variation of a condition imposed with respect to the development authorisation).
(7) An application to which subsection (6) applies—
(a) may only be made if the relevant authorisation is still operative; and
(b) will, for the purposes of this Part, but subject to any exclusion or modification prescribed by the regulations, to the extent of the proposed variation (and not so as to provide for the consideration of other elements or aspects of the development the authorisation), be treated as a new application for development authorisation; and
(c) in a case where the development to which the development authorisation previously given was Category 3 development—must also be dealt with under section 38 as an application for Category 3 development if any representations were made under subsection (7) of that section, unless the relevant authority determines that no such representation related to any aspect of the development that is now under consideration on account of the application for variation and that, in the circumstances of the case, it is unnecessary to deal with the matter as Category 3 development; and
(d) unless otherwise approved by the relevant authority, cannot seek to extend the period for which the relevant authorisation remains operative.
(7a) In addition, the variation of a development authorisation on application under subsection (6)—
(a) cannot have effect so as to impose a new condition, or to vary an existing condition, with respect to a matter that does not fall within the ambit of the application for variation; and
(b) cannot affect the operation of a condition imposed with respect to the original authorisation unless the relevant authority has made specific provision for the variation of the condition in its decision on the application for variation.
Section 39(7a) was first enacted by the Development (Assessment Procedures) Amendment Act 2007 (the Amendment Act), which also amended sub-section (6) and (7). The Amendment Act, by the words in parenthesis in sub-section (6), removed the requirement that proponents of a development obtain the consent of the planning authority for a variation of a condition. Next, it qualified, with the words in parenthesis in sub-section (7)(b), the requirement that an application for variation be treated as a new application, by expressly denying the relevant authority any power to consider any aspect or element of the proposed development other than the subject matter of the application for a variation. Finally, s 39(7a) precluded the imposition of a new condition, or the varying of an existing condition, with respect to a matter which fell outside the scope of the application for variation. Overall, the text of those sub-sections appears calculated to preclude the imposition of a requirement on a variation application which retrospectively derogates from an existing development authorisation. That purpose, which appears from the text of the amendments, is confirmed by the second reading speech given on the introduction of the Bill in the Legislative Council.[7]
[7] South Australia, Hansard, Legislative Counsel, 23 November 2006, 1168 (The Hon. P Holloway).
The power to vary an existing approval is conditioned on an extant approval. The application for variation must therefore have been made within the period prescribed for the substantial completion of the development or, alternatively, made at a later, possibly much later, time when the development had been substantially completed.
The term “development authorisation” in s 39(6) is a reference to any of the consents which have been given pursuant to the Development Act.[8] The variation approval effected a variation to both the development plan consent and building rules consent.
[8] Development Act 1993, s 4.
The first question which must be addressed on an application to vary a development authorisation is whether, as a matter of fact and degree, the development proposed by the application is a variation of the approved development or an application for approval of a different development. In this case, the application is plainly one for variation. The development was, and remains, the construction of a substantial two storey dwelling. A change in the nature of the screening on the upper floor deck of the dwelling is a variation, and a minor variation at that, of the approved development. The answer to this question is not elucidated by attempts to characterise the development for which the variation was sought, as a change in use. First, for the reasons which I have given, the original development plan consent was for a useable deck, and, was not affected by the failure of the builder to comply with the building rules consent. Secondly, even if the variation application sought approval for a change in use from, to adopt the plaintiffs’ counsel’s characterisation, an “ornamental deck” to a useable one, it was nonetheless properly characterised as a variation of the original approval of the dwelling as a whole.
In any event, for reasons which will become apparent shortly, the characterisation of an application as an application for a variation or for approval of a new development will not usually affect the outcome of the application, and could not do so in this case.
If the application is treated as an application to vary the approved development, the next step must be to identify the elements of the proposed development which are not comprehended by the original approval. Those elements will comprise the extent of the proposed variation, and the development for which authorisation is sought, for the purposes of s 39(7)(b) of the Development Act. The extent of the proposed variation must then be assessed against the applicable Development Plan. Plainly enough, the extent of the proposed variation cannot be assessed in the abstract. It must be assessed in the context of the development which has been approved and, perhaps, even substantially completed. An application to vary a development approval, which proposes to increase the height or mass of a building, cannot be sensibly addressed in the abstract. It must be considered against the dimensions of the building which has been approved. It is meaningless to assess an increase in the height of a building by say, one metre, without reference to the already approved or existing height. I understand the reasons for the decision in Karytinos v Corporation of the Town of Walkerville[9] and Chadha v City of Unley[10] to take that approach. A similar approach is required when a variation to the approved use of land is sought. For that reason, the outcome of an application for development plan consent which relates to an approved development, will not often be affected by its characterisation as a variation or an application for a new development.
[9] (2010) 106 SASR 74, 78 [19]-[20].
[10] [2003] SASC 99.
The particular issue raised by these proceedings concerns the proper exercise of the variation power, where the original approval is for a development which was not seriously at variance with the then applicable Development Plan, but, which at the very least, varies to some degree from the provisions of the Development Plan applicable at the time the variation application is made.
Where the proposed variation exacerbates any variance between the approved development and the applicable Development Plan, the extent of the proposed variation must be assessed on its merits. It is a nice question whether the conferral of a power to vary a development authorisation imports, as a relevant consideration in itself, the fact that a prior approval has been given, thereby diminishing the significance of any variance from the terms of the Development Plan. I doubt that it does. Section 39 of the Development Act requires the variation application to be treated as a new application for approval of the development comprising the “extent of the variation”. Subject to one qualification, the extent of the variation must therefore be assessed against the applicable Development Plan in the same way that an application for a new development would.
In assessing an application for a new development against the Development Plan, the nature and scope of an existing approval is a relevant consideration. The pre-existing approval is necessarily a relevant consideration because the effect of the proposed development on the locality in which it is to be undertaken cannot sensibly be addressed without considering the existing approval, and the nature of the development which might be constructed pursuant to that approval, even if the new application for a development, or the application for a variation of the existing approval is refused.
In Courtney Hill Pty Ltd v South Australian Planning Commission[11] King CJ said:
It seems to me that the extent of the variance from the Plan involved in the project must be judged in the context in which the project will be implemented. That context must include the fact that the existing shopping complex is a protected existing use which will continue. The impact … of an extension to a shopping complex which is already there, appears to me to be quite different from the impact of a new complex of equal size. The Planning Authority cannot be precluded, as it seems to me, from assessing the reality of the extent of the variance from the Plan and that reality can only be assessed if the proposal is seen for what it is, mainly an extension of an already existing facility.[12]
[11] (1990) 59 SASR 259.
[12] Courtney Hill Pty Ltd v South Australian Planning Commission (1990) 59 SASR 259, 263.
In my view, that reasoning is also applicable to an application to vary an approved development, and to an application for a new development where there is an existing authorisation for a comparable development.[13]It is difficult to see why an existing approval should have any greater weight when an application is made for a variation than it would have on an application for a new development. The very phrase “treated as a new development” suggests that there should not be any difference.
[13] See Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula (1997) 69 SASR 472, 478. See also Chadha v City of Unley [2003] SASC 99, [12]-[13]; Karytinos v Corporation of the Town of Walkerville (2010) 106 SASR 74, 77 [15].
The purpose of the variation power appears to be to facilitate and expedite the making of variations without exposing developers to delay whilst all of the elements of the development are reconsidered, and to the risk that a previously given authorisation will be retrospectively burdened with more onerous restrictions. The policy underlying the conferral of the power appears to be to facilitate the approval of desirable improvements which become apparent in the course of a development.
The qualification to which I referred in paragraph [40] is this. Where, as here, proposed variations of the approved development ameliorate the variance from the applicable Development Plan there will usually be, at the very least, strong reason to approve the variation. It is manifestly the purpose of the Development Act to promote the conformity of developments with the extant Development Plan. It is difficult to envisage any valid reason to withhold approval for a variation which has the effect of reducing the variance between an approved development and the extant Development Plan. One motive for withholding the approval might be that if the variation is not approved the original development might not be undertaken at all. However, having regard to the statutory development right conferred by the original approval and the manifest purpose of the variation sub-sections of s 39 of the Development Act, which is to protect existing approvals, proceeding in that way would be to pursue an extraneous purpose. Importantly, the original approval confers a right to proceed with the original development not a different one. Hence the proper classification of an application as one for a variation or a fresh development approval will be important in the case of variations which reduce the degree of variance.
It follows that even though some elements of a particular development might not be approved on a fresh application for development approval because of a serious variance between those elements and the applicable provisions of the extant Development Plan, those elements almost certainly will be approved on an application to vary an existing approval if the proposed variation to those elements brings them into greater conformity with the extant Development Plan. It is critical that on an application to vary an authorisation, the development comprises only the variations whereas on a fresh application the whole of the development must be assessed against the Development Plan.
Accordingly, even if I had found that the deck with the screening authorised by the variation approval was seriously at variance with the Development Plan 2009, the variation approval would nonetheless have been a valid exercise of the power conferred by s 39(7) of the Development Act. Section 39(7)(b) requires only the development which is the extent of the variation to be assessed in accordance with ss 33, 35 of the Development Act. Assuming, for these purposes, that the original approval is for a development which is seriously at variance with the terms of the Development Plan as at the time the variation application is made, it would be absurd to require a relevant authority to refuse the variation application where it would ameliorate the variance between the current plan and the existing approval which was properly given under the earlier provisions of the Development Plan. In my view, the best way to approach the matter is to say that a proposed development comprising a variation which brings an existing development, or an existing approval for a development, into greater conformity with the extant Development Plan is not a development which is seriously at variance with it, even though the entire development, even as varied, might remain seriously at variance with it. An alternative approach may be to qualify, by necessary implication, the statutory requirement to treat an application for variation as an application for a new development, where the variation brings a development into greater conformity with the extant Development Plan but I need not consider that further.
I accept that the extent of the screening falls within the scope of the variation application and that there is a bare power to impose more stringent conditions as to the screening. The provisions of s 39(7a) plainly contemplate the imposition of additional or more burdensome conditions than those on which the original approval was given with respect to the varied elements. There will be many variation applications where the exercise of that power will be necessary. Many variation applications will involve changes which extend the scope of a permissible development, for example by increasing mass height or intensity of use, in a way which calls for the imposition of new conditions. However, very different considerations affect a variation application like the one here, which is essentially limited to ameliorating the degree of variance. In such a case, the imposition of more burdensome conditions than those offered may well be unreasonable. It would discourage applicants from seeking, often against their own interest, variations which better conform to the extant Development Plan.
Conclusion
At least in the circumstances of this case, the fact that the proposed variations ameliorate the overlooking problem is decisive. It is simply impossible in these circumstances to contend that the variation approval was irrational or illogical. Assuming a valid, extant approval, the potential to more effectively reduce the variance from the Development Plan is not a rational reason to refuse the application. It would be an inane and futile exercise to refuse the variation application because it is almost certain that the defendants would proceed in accordance with the original approval. The result will be a development which is even more at variance with the Development Plan 2009 than the development authorised by the variation approval. Even though the Council had the bare power to impose more stringent conditions, it was not precluded from giving the approval it did and the approval was not unreasonably given for the reasons in [48] above.
My reasons have proceeded on the assumption of the validity of the original approval. The period prescribed by the Rules of this Court for bringing an action for judicial review of the original approval has long since passed. However, in response to the Council’s submission that these proceedings served no useful purpose because of the continuing validity of the original approval, counsel for the plaintiffs hinted, in reply, at a possible ground on which the original approval might be impugned. I understand that ground to be that the application to vary the original approval, and the decision to build in accordance with that approval, was an abandonment of the original approval such that it was thereby annulled. That cannot be right as a general proposition, given the very terms of s 39(6)-(7a) and the possibility allowed by the Development Act of holding different authorisations concurrently. I cannot see any reason why it should be so in the circumstances of this case. The original approval, as I have found, was for a dwelling with a usable deck. The variation approval was for the placement of screening on that deck. It is difficult to see how the addition of screening is an abandonment of the original approval.

Be that as it may, an argument to that effect, if it were to be made, should have been fully developed in written and oral submissions. Indeed, if a challenge to the original approval were ever to be made, it should have proceeded concurrently with this action. For these reasons, there is just no issue properly raised in these proceedings as to the validity of the original approval. Accordingly, the validity of the variation approval can only be considered on the premise of the original approval’s validity. For that reason also, the plaintiffs’ action must be dismissed as a futile invocation of this Court’s judicial review jurisdiction.
I dismiss the plaintiffs’ action.