Ross v Lane - [2022] NSWCA 235

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ross v Lane [2022] NSWCA 235
Hearing dates: 11 August 2022
Date of orders: 17 November 2022
Decision date: 17 November 2022
Before: Macfarlan JA at [1];
Beech-Jones JA at [6];
Basten AJA at [69]
Decision:
(1) Appeal dismissed.
(2) Appellant to pay the First Respondent’s costs of the appeal.

Catchwords:
ADMINISTRATIVE LAW – jurisdictional facts – applicability of State Environment Planning Policy 65 – whether application of SEPP 65 was a matter for the Court or the consent authority to determine
PLANNING LAW – planning approval – development application – applicability of State Environment Planning Policy 65 – Design Quality of Residential Apartment Development (“SEPP 65”) – Council approved development application for modifications and extensions to the first respondent’s apartment including construction of additional storey – substantially affected views from one floor of appellant’s apartment in neighbouring block –whether development approval invalid – whether SEPP 65 applicable – whether SEPP 65 complied with –– whether development application involved the “substantial redevelopment or the substantial refurbishment of an existing building”

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), s 135
Interpretation Act 1987 (NSW), s 33
Land and Environment Court Act 1979 (NSW) ss 25B, 58
Environmental Planning and Assessment Act 1979 (NSW) ss 1.4, 4.9, 4.11-4.18, 4.59
Environmental Planning and Assessment Regulation 2000 (NSW), cll 50, 54; Sch 1, Pt 1, cl 2

Cases Cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10
Barton Securities Ltd v Warringah Council [2009] NSWLEC 179; 170 LGERA 223
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
Colonial Bank of Australasia Ltd v Willan (1874) LR 5 PC 417
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5
Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA147
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7
R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 32
Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277
SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66
Sutherland Shire Council v Finch (1970) 123 CLR 657; [1970] HCA 49
Timbarra Protection Coalition Inc (1999) 46 NSWLR 55; [1999] NSWCA 8
Trives v Hornsby Shire Council & Ors (2015) 89 NSWLR 268; [2015] NSWCA 158
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Category: Principal judgment
Parties: Olivia Ross (Appellant)
Patrick Lane (First Respondent)
The Council of the City of Sydney (Second Respondent)
Representation:
Counsel:
Mr T Robertson SC; Mr T To (Appellant)
Mr I Hemmings SC; Ms J Reid (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Benjamin & Khoury (Appellant)
Swaab (First Respondent)
A Singh – Sydney City Council (Second Respondent)

File Number(s): 2021/333379
Decision under appeal

Court or tribunal:

Land & Environment Court

Jurisdiction:

Class 4

Citation:

[2021] NSWLEC 121

Date of Decision:

4 November 2021

Before:

Moore J

File Number(s):

2020/321900

HEADNOTE

[This headnote is not to be read as part of the judgment]

The First Respondent sought and obtained development approval from the Second Respondent, the Council of the City of Sydney (the “Council”), for modifications and extensions to his apartment on the top floor of a building including the construction of an additional storey. The Appellant resided in an apartment in a neighbouring block of apartments. The construction of the additional storey substantially affected the views from one floor of the Appellant’s apartment. The Appellant applied to the Land and Environment Court for orders declaring the development approval invalid. The Appellant contended that the development application was governed by State Environment Planning Policy 65 – Design Quality of Residential Apartment Development (“SEPP 65”) and the relevant Council had, amongst other matters, failed to refer the application for approval to a design review panel for assessment. Clause 28(1) of SEPP 65 obliges a consent authority to refer a development application which seeks consent to carry out development to which SEPP 65 applies to a design review panel. A design review panel is required to consider the design quality of the development when evaluated in accordance with the “design quality principles” which include effects on the amenity of neighbouring properties. The Council determined that SEPP 65 was not applicable. Whether or not SEPP 65 was applicable depended on whether, in terms of clause 4(1)(a)(ii) of SEPP 65, the proposed development consisted of the “substantial redevelopment or the substantial refurbishment of an existing building”.

Before the primary judge (Moore J), the Appellant contended that whether or not cl 4(1)(a)(ii) of SEPP 65 was satisfied was a “jurisdictional fact” that was for the Court to authoritatively determine. The First Respondent contended that it was a matter for the Council to decide. The primary judge assumed, without deciding, that it was a matter for the Court to determine but nevertheless dismissed the proceedings. The primary judge found that the proposed development constituted neither a substantial redevelopment nor a substantial refurbishment of an existing building. In addressing cl 4(1)(a)(ii) the primary judge addressed the effect of the proposed development of the First Respondent’s apartment on the visual impact of the building it formed part of but excluded any consideration of “externalities” such as the effect of the development on the views or amenity of neighbouring properties. The primary judge rejected a submission that, because the definition of “building” in s 1.4 of the Environmental Planning and Assessment Act 1979 (the “Assessment Act”) includes “part of a building”, then any substantial renovation or substantial refurbishment of a single apartment engages SEPP 65.

Sub-section 4.15(1) of the Assessment Act provides that 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” including the “provisions of …any environmental planning instrument” that “apply to the land to which the development application relates”.

The decision was appealed.

The issues arising on the appeal were:

whether a determination of cl 4(1)(a)(ii) of SEPP 65 was satisfied is a matter for the Court or the consent authority to authoritatively determine?
if the determination of whether cl 4(1)(a)(ii) of SEPP 65 was satisfied is a matter for the Court to authoritatively determine, whether the primary judge erred in concluding that the proposed development is not a “substantial redevelopment or the substantial refurbishment of an existing building”.

The Court held, dismissing the appeal:

In relation to issue (i): Basten AJA (Macfarlan JA agreeing):

Whether the application of SEPP 65 to a development application is a jurisdictional fact is a question of statutory construction. Although the Assessment Act does not expressly provide for the engagement of the power upon the satisfaction or opinion of the consent authority, such an intention may be inferred from the nature of the power and the circumstances in which it comes to be exercised: [75], [77].
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422; Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277, applied.
The principles established in Woolworths Ltd v Pallas Newco in relation to the operation of the Assessment Act must be applied; however, the aspect of the statutory scheme which is engaged is different. In that case, the question was whether the proposed development was prohibited, or could be carried out with consent. That issue was characterised as “preliminary or ancillary to” the consent process, and as raising facts and matters “extrinsic to” that process. In the present case, there was no issue but that the development was permitted with consent; the question was whether SEPP 65 was a matter to be applied in the course of determining whether to grant consent. [2], [87], [93], [94].
Ordinarily, the legislature intends a decision-maker to determine issues requiring evaluative judgment, so that any error would be an error within jurisdiction. Where it may be difficult to characterise matters, as in s 4.15 of the Assessment Act which includes some criteria which are precisely defined and other criteria involving matters of degree, it is unlikely that the legislature intended some to be jurisdictional facts, but not others: The inconvenience of the conclusion that some matters could only be authoritatively decided by a court also militated against them being jurisdictional criteria:[3]-[5], [80], [94]-[95]. Accordingly, the application or otherwise of SEPP 65 was a matter for the consent authority to determine [1], [73].
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, referred to.
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422, distinguished.

In relation to issue (i) per Beech-Jones JA (dissenting):

In the context of determining an application for approval of a development application, the issue posed by cl 4(1)(a)(ii) of SEPP 65 is a matter that is to be determined objectively by a Court and not a matter is that authoritatively determined by the consent authority (at [48]). Ordinarily, the scope of the matters that must be considered by a decision maker such as a consent authority in the exercise of a statutory power is a matter for a court to determine and not the decision maker themselves, although it may be clear from the terms of a particular planning instrument that whether it is applicable to a particular development applicant is dependent on the formation of an opinion by the consent authority. Nothing in text of SEPP 65 suggests that is the case (at [39] to [40]). The evaluative nature of the test posed by cl 4(1)(a)(ii) tended against a conclusion that it is a matter for the Court to authoritatively determine, however that is not determinative and the scope for evaluation is limited if it does not include external impacts (at [44] to [47]).

Colonial Bank of Australasia Ltd v Willan (1874) LR 5 PC 417; Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; [2000] HCA 5; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21; SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66; Sutherland Shire Council v Finch (1970) 123 CLR 657; [1970] HCA 49; Timbarra Protection Coalition Inc (1999) 46 NSWLR 55; [1999] NSWCA 8; Trives v Hornsby Shire Council & Ors (2015) 89 NSWLR 268; [2015] NSWCA 158; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA147 considered.

In relation to issue (ii): per Beech-Jones JA (Macfarlan JA and Basten AJA not deciding):

The primary judge did not err in determining that the proposed development did not consist of the “substantial redevelopment or the substantial refurbishment of an existing building”. The primary judge was correct to conclude that the external impacts of the proposed development were irrelevant to a determination of whether the development consists of the substantial redevelopment of an existing building (at [57]). The primary judge did not err in his approach to the definition of “building” (at [61]).

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 applied.

JUDGMENT

MACFARLAN JA: Subject to one matter, I agree with the judgment of Beech-Jones JA and with the making of the orders that his Honour proposes. The one matter is the question, whose answer is not essential to the outcome of the appeal, of whether the determination of the applicability of the State Environmental Planning Policy No. 65 (“SEPP 65”) to the appellant’s development application was a jurisdictional fact to be resolved authoritatively by the Court, or whether it was a matter for the Council’s decision, challengeable only on conventional judicial review grounds. As is apparent from the two other judgments on this appeal, the issue is one upon which reasonable minds can readily differ. Nevertheless, I have concluded that the issue should be resolved in the manner determined by Basten AJA, for the reasons that his Honour gives. The following observations are by way of emphasis of matters to which his Honour refers.
First, I am persuaded that there is a proper basis, as identified by his Honour, for distinguishing the decision in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2002] NSWCA 422 (“Woolworths”). That case was concerned with a prohibition on developments of a particular type. As Spigelman CJ observed in that case “the fact that what is involved is a contravention of the Act that constitutes a criminal offence is a strong indicator that the fact is jurisdictional” (at [37]). The present case does not involve prohibited development, but development which may be carried out with consent. For that reason, the provision in question here is more readily described as a part of the process of determination by the Council of the development application, as distinct from a determination that is “extrinsic or preliminary or ancillary to the exercise of the power to grant consent” (Woolworths at [51]).
Secondly, although not determinative, the fact that consideration of what is a “substantial” redevelopment is an inherently evaluative exercise. That tends against a conclusion that a jurisdictional fact is involved.
Thirdly, whilst again not itself determinative, the issue arises under section 4.15(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”) in a context where many, if not all, of the matters referred to in the following paragraphs of that section are of a clearly non-jurisdictional fact nature.
Fourthly, characterisation of SEPP 65’s application as a jurisdictional fact would render Council consents more readily open to challenge than would otherwise be the case. This could be seen as detrimental to the public interest where the point in issue, being a subjective one of planning and development, is one upon which the Council would be well-equipped to opine and (subject to conventional judicial review challenge) reach a final conclusion.
BEECH-JONES JA: This is an appeal under s 58 of the Land and Environment Court Act 1979 (NSW) against a judgment of Moore J dismissing proceedings brought by the Appellant, Olivia Ross. [1] Those proceedings were brought in the Land and Environment Court’s Class 4 jurisdiction. The Appellant sought a declaration that a development consent granted by the Second Respondent, the Council of the City of Sydney (the “Council”), in respect of work proposed to be undertaken on an apartment owned by the First Respondent, Patrick Lane (the “Respondent”), was invalid. The Council filed a submitting appearance in the Land and Environment Court and did not take an active part in proceedings in this Court.
1. Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 12 (“Ross v Lane”).
The appeal concerns the applicability or otherwise of the State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development (“SEPP 65”) to the Council’s decision to approve the First Respondent’s development application (“DA”). Two principal issues arose on the appeal. The first was whether the issue posed by cl 4(1)(a)(ii) of SEPP 65, namely whether the First Respondent’s DA involved “the substantial redevelopment or the substantial refurbishment of an existing building” and upon which the applicability of SEPP 65 depended, is to be determined as a matter of objective fact, that is, determined authoritatively by a court, or is a matter for the Council as the consent authority to finally decide. The second issue was whether, as the primary judge found, an assessment of whether the DA involved a “substantial redevelopment” is to be determined by reference only to its effect on the building that the apartment formed part of, or whether it extended to considering the effects of the proposed works on the amenity of neighbouring properties.
For the reasons that follow, I consider that, in the context of considering a DA, cl 4(1)(a)(ii) of SEPP 65 poses an issue of objective fact that can only be authoritatively determined by a court. In relation to the second issue, I consider that the approach of the primary judge was correct. Accordingly, I would dismiss the appeal.

The Development Application

On 25 May 2019 the First Respondent lodged his DA. The apartment the subject of the DA forms part of a block of apartments on a site in Elizabeth Bay. The site on which the block is located is rectangular in shape and has an area of 1,464 square metres. There are two apartment blocks on the site, one of which fronts Billyard Avenue and the other of which fronts Onslow Avenue. The primary judge described the First Respondent’s apartment as being located in a complex that “comprises two multi-storey residential apartment elements constructed on the common pediment of the basement car-park serving the entirety of the complex.”[2]
2. Ross v Lane at [103].
The apartment block which includes the First Respondent’s apartment fronts Onslow Avenue. It presents as five storeys onto Onslow Avenue. Due to a slope on the site, it is seven storeys at its highest point.
The First Respondent’s apartment is on the top floor of his apartment block. The work the subject of the DA involves the construction of a new storey on the southern portion of the building containing a living space, bathroom and outdoor terrace area, the installation of an internal circular stairwell connecting the new storey to his unit and the enclosure of the northern terrace on the existing level of the unit for a wintergarden.
The most contentious aspect of the proposal is the construction of the additional storey and its effect on the views enjoyed by various neighbouring apartments. It is proposed that the additional storey be set back 4.4m from the front of the existing building and approximately 10m from the boundary of the property on Onslow Avenue. According to the Council’s assessment, this setback allows the proposal to retain the existing building’s five storey presentation to Onslow Avenue. It increases the building height in the middle of the building from six to seven storeys. The Council considered this to be acceptable from a streetscape point of view as the “proposal would not be overly visible from Onslow Avenue or Billyard Avenue, and the increased height in this location is adjacent to the existing lift overrun”.
This aspect of the proposal is best illustrated by the following diagram:

The Appellant’s apartment is located next door on Onslow Avenue. She was clearly concerned about the effect of the proposal on the views from her apartment. She submitted a View Impacts Assessment to the Council and an addendum to that assessment. At the risk of oversimplification, various photographs with shade projections accompanying the addendum report indicated that the view from the lower level of the Appellant’s apartment would be significantly affected. However, the effect on the view from the upper level of her apartment was minimal.

The Council considered the material supplied by the Appellant and other apartment owners in nearby apartment blocks. The Council’s Director of City Planning, Development and Transport concluded that “[w]hile the proposal will result in some view sharing impacts to adjoining properties, applying the ‘Tenacity view sharing assessment’ concludes that view loss from adjoining properties as a result of the proposed addition is acceptable.”
On 12 August 2020, the Council granted the DA under s 4.16 of the Environmental Planning and Assessment Act 1979 (NSW) (the “Assessment Act”). Before the primary judge it was agreed that the DA was not accompanied by a “design verification certificate that addresses how the design quality principles [set out in SEPP 65] are achieved and demonstrates how Parts 4 and 5 of the Apartment Design Code have been achieved”, as referred to in cll 50(1A) and (1AB) of the Environmental Planning and Assessment Regulation 2000 (NSW)” (the “Regulation”). It was also agreed that the DA was not referred to the City of Sydney Design Review Panel.

SEPP 65

As it was critical to the Appellant’s case in the Land and Environment Court and her appeal to this Court, it is necessary to refer to various aspects of SEPP 65.
Clause 2 of SEPP 65 identifies the “[a]ims, objectives etc” of SEPP 65 as being the improvement of the design quality of residential apartment development in New South Wales by, inter alia, “achiev[ing] better built form and aesthetics of buildings and of the streetscapes and the public spaces they define” and maximising the “amenity, safety and security for the benefit of [building] occupants and the wider community”. Clause 2 includes a statement that the policy recognises that the “design quality of residential apartment development is of significance for environmental planning for the State”.
Clause 4 of SEPP 65 concerns the application of the policy. It provides:

“4    Application of Policy
(1)   This Policy applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component if—
(a)   the development consists of any of the following—
(i)   the erection of a new building,
(ii)   the substantial redevelopment or the substantial refurbishment of an existing building,
(iii)   the conversion of an existing building, and

(b) the building concerned is at least 3 or more storeys (not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking), and
(c) the building concerned contains at least 4 or more dwellings.

(2) If particular development comprises development to which subclause (1) applies and other development, this Policy applies to the part of the development that is development to which subclause (1) applies and does not apply to the other part.
(3) To remove doubt, this Policy does not apply to a building that is a class 1a or 1b building within the meaning of the Building Code of Australia.
(4) Unless a local environmental plan states otherwise, this Policy does not apply to a boarding house, co-living house or a serviced apartment to which that plan applies.” (Emphasis added.)

Part 3 of SEPP 65 concerns “[d]esign review panels”. Clause 27 specifies that their functions include “giv[ing] specific independent design advice to the consent authority on a development application for development to which this [SEPP 65] applies” and “provid[ing] independent advice to consent authorities and applicants, and their consultants and advisers, before the lodging of relevant development applications”.
Part 4 of SEPP 65 is headed “[a]pplication of design quality principles”. Within that part, cl 28(1) obliges a consent authority that receives a DA for consent to carry out development to which SEPP 65 applies to refer the application to the relevant design review panel (if any) for advice concerning the design quality of the development. As noted, it was agreed that the Council had a design review panel and that the First Respondent’s DA was not referred to it. Clause 28(2) provides:

“(2)   In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration)—
(a)   the advice (if any) obtained from the design review panel, and
(b)   the design quality of the development when evaluated in accordance with the design quality principles, and
(c) the Apartment Design Guide.”

The “[d]esign quality principles” are specified in Sch 1 to SEPP 65. They address such topics as “[c]ontext and neighbourhood character”, amenity including amenity for residents and neighbours, and aesthetics. During argument the Court was also taken to Pt 4 of the “Apartment Design Guide” (being a document published by the Department of Planning and Environment on the day SEPP 65 commenced) which also addressed amenity.

The Primary Judgment

Before the primary judge the Appellant contended that the Council’s approval of the DA was invalid for want of compliance with SEPP 65. The Appellant contended that the DA involved “the substantial redevelopment or the substantial refurbishment of an existing building” such that SEPP 65 was applicable. If SEPP 65 applied then it was submitted that the DA was invalid by reason of the absence of the material required by the Regulation and a failure to comply with cl 28. (The Appellant also pleaded a non-compliance with a height restriction in a development standard but that is not relevant to this appeal.)
A premise of the Appellant’s case at first instance was that SEPP 65 applied to the First Respondent’s DA. This turned on whether the proposed development consisted of a “substantial redevelopment or the substantial refurbishment of an existing building” within the meaning of cl 4(1)(a)(ii) of SEPP 65. The parties described this as an issue of “jurisdictional fact”. In using that description they meant to convey that satisfaction or otherwise of cl 4(1)(a)(ii) was a matter for the Court and not the consent authority to finally determine. In this Court, senior counsel for the Appellant, Mr Robertson SC, accepted that, if the determination of the applicability of SEPP 65 were not a matter for the Court to authoritatively determine, then his client’s appeal must fail.
The primary judge addressed the issue in some detail before determining the proceedings “on the assumption that cl 4(1)(a)(ii) of SEPP 65 does require the determination of a jurisdictional fact”; i.e., the application of cl 4 is to be authoritatively determined by the Court on the material before it as opposed to authoritatively determined by the consent authority. [3]
3. Ross v Lane at [86].
The primary judge noted that the definition of “building” included “part of a building” and concluded that an assessment of the substantiality of the renovation was to be assessed by reference to the building that the First Respondent’s apartment formed part of and not the entire apartment complex on the site (at [104] to [105]). [4] In making that assessment, his Honour accepted that the “view impact assessment commissioned by [the Appellant] concluded that the impact was substantial/significant.”[5] However, his Honour concluded that the “objective factual assessment” required by cl 4(1)(a)(ii) “excludes externalities such as private domain impacts”[6] although it does “engage consideration of how his proposed development will be viewed from the public domain in the overall context of the existing building upon which it is proposed to be erected.”[7]
4. Ross v Lane at [104] to [105].
5. Ross v Lane at [113].
6. Ross v Lane at [113].
7. Ross v Lane at [117].
Before the primary judge (and on appeal) the Appellant contended that the question of whether a development is substantial “should be answered having regard to the objectives and mechanisms of SEPP 65” including furthering the design quality principles set out in Sch 1 to SEPP 65. [8] The primary judge rejected that contention and concluded that “other elements of SEPP 65 cannot be engaged in favour of [the Court] determining that, as a matter of objective fact, the relevant jurisdictional question posed by cl 4 [of SEPP 65] should be answered in the affirmative”. [9] However, his Honour further found: [10]

“125 However, if I am wrong in this regard, I have also considered whether the aims of SEPP 65 to which [Counsel for the Appellant] referred me and … the elements in the principles contained in Sch 1 to the Policy would cause me to reach a different conclusion on whether or not the cl 4 gateway was open.
126 I am satisfied that this approach (one which I consider would be erroneous) would not alter my conclusion that, as a matter of objective fact, Mr Lane's proposed development constitutes neither substantial redevelopment nor substantial refurbishment of an existing building. This is because, although the matters to which he referred me in SEPP 65 could be regarded as tipping the qualitative element of my assessment some a little in favour of the position for which Mr Farland advocated, that could not outweigh the overwhelming weight of the quantitative analysis element leading to the conclusion that SEPP 65 does not apply to Mr Lane's proposed development.”
8. Ross v Lane at [124].
9. Ross v Lane at [124].
10. Ross v Lane at [125] to [126]

The primary judge then addressed various matters bearing upon an assessment of whether the redevelopment or refurbishment was substantial including that the proposed cost of the works is $385,000.00, that the works involve an increase in the floor area of the First Respondent’s apartment from 94.47m² to 134.2m²and the addition of a new storey. His Honour also noted that the proposed work involves alterations and additions to one unit in a residential apartment building comprising 28 units, an increase in 1.8% of the existing floor space with the total proposed floor space ratio of the development being 2.05:1, where the relevant Local Environment Place permits a floor space ratio of 4.5:1. [11]
11. Ross v Lane at [127] to [128].
In relation to the visual impact of the effects of the proposed works on the apartment building that the First Respondent’s apartment forms part of, his Honour found that “the fact that Mr Lane's proposed development is below the height of, and, at least in part, hidden by, the lift machinery element at the upper level of the existing building does not result in a significant change to the built form of that existing building.”[12] His Honour then referred to various diagrams depicting external views of the proposed works which are annexed to the primary judgment. His Honour found that “it is not possible to conclude that Mr Lane’s proposed development constitutes substantial redevelopment and/or substantial refurbishment of an existing building.”[13] His Honour reached the same conclusion if cl 4(1)(a)(ii) were applied to only the apartment building that faces Onslow Avenue (applying the definition of “building” in s 1.4 of the Assessment Act as including part of a building). [14]
12. Ross v Lane at [133].
13. Ross v Lane at [143].
14. Ross v Lane at [151].
As his Honour concluded that SEPP 65 did not apply the proceedings were dismissed. It was not necessary for his Honour to consider the application of s 25B of the Land and Environment Court Act which enables that court to suspend a consent found to be invalid and to specify terms compliance with which will validate the consent.

Application of SEPP 65: “Jurisdictional Fact”

The first issue that arises on the appeal is whether or not the application of SEPP 65 to the First Respondent’s DA is to be authoritatively determined by a Court or the consent authority. In the context of his DA, is it for the Court or the Council to finally determine whether the DA involves a “substantial redevelopment or the substantial refurbishment of an existing building”? Although this issue was not raised by either the grounds of appeal or a notice of contention, it was accepted by both parties that it had to be resolved as it was potentially determinative (and could not otherwise be assumed).
As noted, the submissions in relation to this issue described the question of whether the DA involves a “substantial redevelopment or the substantial refurbishment of an existing building” as whether that is a so-called “jurisdictional fact”. The description “jurisdictional fact” is often used to describe the criterion that enlivens a statutory power or discretion (Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; [2000] HCA 5 at [28]; “Enfield”). The result of a process of statutory construction can sometimes yield a conclusion that some criterion relevant to an exercise of power is a “jurisdictional fact”, that is, it is a matter for a court and not the decision maker to authoritatively determine. Nevertheless, the use of the phrase “jurisdictional fact” can be confusing in that the formation of an opinion by a decision maker can also be a jurisdictional fact (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]). Similarly, a conclusion that some criterion is for a court to authoritatively determine is not only reached in cases where that criterion is not strictly a pre-condition to the exercise of a power. Hence, the position has been described, more accurately, as involving a distinction between a fact that is an “essential preliminary to the decision-making process” and “a fact to be adjudicated upon in the course of the inquiry” (Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442 to 443; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [46] to [49]; “Woolworths”; Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31 at 33). Thus, in this case, there is no doubt that the authority or jurisdiction to grant or refuse the First Respondent’s DA was conferred on the Council. However, the relevant question said to present a “jurisdictional fact” was whether a determination of the applicability of SEPP 65 was an essential preliminary to that decision-making process or a fact or matter to be adjudicated upon in the course of assessing the First Respondent’s DA.
Much of the argument in relation to the “jurisdictional fact” issue concentrated on the terms of SEPP 65 which are set out above, however, the starting point is the Assessment Act.
In support of its contention that a determination of whether cl 4 of SEPP 65 is a matter for a Court to authoritatively determine, the Appellant referred to various parts of Regulation, cl 50 that required the submission of various documents concerning the compliance with design quality principles for DAs that “relate … to residential apartment development”, being a reference to a development to which SEPP 65 applies. [15] Compliance with these provisions is required by ss 4.11 and 4.12 of the Assessment Act which specify the requirements for a DA. It was submitted that the provision of this material was a precondition to the making of a valid DA and in turn a valid development consent. It was submitted that this supported the contention that whether SEPP 65 is applicable is an essential preliminary to the consent authority’s decision making as opposed to something to be adjudicated upon during the determination of a development approval.
15. SEPP 65; cl 3(1); see Regulation cl 50(1A);.
There is some force in this, although its proper resolution would require this Court to determine whether the failure to include the specified documents with a DA would render a subsequent grant of a development consent invalid, a matter that is not necessary to decide (see SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [15] and cases thereat).
The inquiry as to whether some criterion is a jurisdictional fact involves a “careful analysis of the statute” with particular focus on the “scope and nature of the jurisdiction and of the fact said to be jurisdictional” (Woolworths at [6]). Thus, the starting point is the power that was exercised by the Council, namely s 4.16(1) of the Assessment Act. It empowers and obliges a “consent authority … to determine a development application” by granting consent to the application either unconditionally or subject to conditions or by refusing consent to the application. Section 4.15 addresses the exercise of that power. Section 4.15(1) provides:

“(1)   Matters for consideration—general 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—
(a)   the provisions of—
(i)   any environmental planning instrument, and
…
(iv)   the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c)   the suitability of the site for the development,
(d)   any submissions made in accordance with this Act or the regulations,
(e)   the public interest.” (emphasis added)

Although many environmental planning instruments, including SEPP 65, are drafted in terms that purport to dictate the matters that must be considered by the consent authority in determining a DA, they do so from a shaky premise. Section 4.15(1)(a)(i) only requires that the consent authority “take into consideration” the provisions of the relevant environmental planning instrument. A statutory requirement to “take into account” a factor in making an administrative decision means it must be “give[n] weight … as a fundamental element in making” the relevant determination (R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J; [1979] HCA 32). A statutory requirement to take an instrument “into consideration” is not relevantly different. However, neither phrase requires the decision maker to apply the instrument as though it were a binding statute.
The present issue concerns what instruments fall within s 4.15(1)(a)(i); i.e., whether the instruments “apply to the land to which the development application relates”. If the text of the statute or instrument suggests that the relevant determination is a matter of opinion or satisfaction of the relevant decision maker then it will not be jurisdictional in the sense discussed above (Enfield at [33]). Hence, in Trives v Hornsby Shire Council & Ors (2015) 89 NSWLR 268; [2015] NSWCA 158 (“Trives”) the relevant provisions of the Assessment Act conferred on the accredited certifier the task of, inter alia, “determin[ing] … whether the proposed development was complying development or not” before issuing a complying development certificate (at [28] to [30]). This was held to be inconsistent with a contention that it was a matter for the court to determine whether the proposed development was “complying development” (at [34]). On the proper construction of that part of the Assessment Act considered in Trives the determination of whether the development was complying development was something to be adjudicated upon in the course of the inquiry.
However, unlike Trives, nothing in the Assessment Act expressly makes a determination of whether the instrument in question “appl[ies] to the land to which the development application relates” a matter of opinion for the consent authority. If SEPP 65 is such an instrument, then, as just noted, it must be taken into consideration. It is one thing for the weight to be attached to a particular instrument to be a matter for the consent authority. It is another for the statute to be construed so as to make the applicability of a particular environmental planning instrument to a particular development consent application dependent on the assessment of the consent authority. Ordinarily, the scope of the matters that must be considered by a decision maker such as a consent authority in the exercise of a statutory power is a matter for a court to determine and not the decision maker themselves. One circumstance that is outside the ordinary is those statutes that expressly provide that the decision maker may have regard to such matters as they “consider relevant”[16] but even those type of provisions have their limits.
16. See for example Crimes (Administration of Sentences) Act 1999, s 135(2)(j)

In this case there is no scope for a consent authority to determine not to have regard to any of the considerations specified in ss 4.15(1)(b) to (e), although the facts found concerning those matters and the weight to be attached to them is a matter for the consent authority. Save for one matter, the same is applicable to ss 4.15(1)(a). The one matter that may differentiate s 4.15(1)(a) from ss 4.15(b) to (e), is that it may be clear from the terms of a particular instrument that whether it is applicable to a particular development applicant is dependent on the formation of an opinion by the consent authority. Thus, subject to considering the terms of the particular instrument, whether or not the instrument applies to the land to which the development relates is not a matter for the consent authority to authoritatively decide.
This approach is supported by the following passage from Woolworths at [50] to [51] where Spigelman CJ observed that:

“50 [Former s] 79C of the Act makes provision for a consent authority to take into account a wide range of considerations when determining to grant or withhold consent under s80 of the Act. It is not necessary to set them out here. However, the particular facts and matters which determine whether the proposed development falls within a classification do not inevitably arise in the course of considering the exercise of the discretionary power to grant or withhold consent. The classification process is not only distinct but is extrinsic to the process of determining whether consent should be given. No doubt the features of the development that determine the classification have implications for the s79C considerations, but that does not mean that the classification is a matter upon which a consent authority must adjudicate when making a s80 determination.
51 Section 79C(1)(a)(i) [of the Assessment Act] requires a consent authority to take into consideration the provisions of any environmental planning instrument, but classification is not a part of the plan that arises during the course of the evaluation process. The determination of whether a particular development proposal answers the classification of “drive-in take-away establishment” appears to me to be a reference accurately described as either extrinsic or preliminary or ancillary to the exercise of the power to grant consent. It is not a matter that falls to be considered under s79C, in the course of making a determination under s80.”

Former s 79C of the Assessment Act as referred to in this passage was in terms that are not materially different to s 4.16 described above. The process of “classification” in this passage is a reference to the classification within a local environmental plan of various uses of land as permissible with consent (at [197]). Hence, the determination of whether a particular use of land could be the subject of a development consent was characterised as “extrinsic or preliminary or ancillary” to the process of determining whether consent could be granted under s 79C (Woolworths at [51]).
The process of determining whether a particular environmental planning instrument “appl[ies] to the land to which the development application relates” is similar to the process of determining whether a particular use of land is permissible with consent although the analogy is not complete. Both processes are preliminary to the exercise of the power in that the latter may preclude the exercise of the power and the former specifies what matters must be considered when the power is being exercised. Once both of those matters are ascertained then the process of exercising the power to grant or refuse development consent can be undertaken. While it is not free from doubt, I consider that a determination of whether or not an environmental planning instrument applies to the land to which the DA relates for the purposes of s 4.15(1)(a) of the Assessment Act is a matter for a court and not the consent authority to authoritatively determine. That said it follows from [40] that the outcome of the court’s determination could be that the applicability of the particular instrument is itself dependent on the formation of an opinion by the consent authority but that will only be because the instrument is drafted in a manner that makes it so.
This brings the analysis to cl 4 of SEPP 65 which is set out above. Nothing in cl 4 expressly makes a determination of whether SEPP 65 applies a matter for the consent authority to determine (authoritatively). As noted, the relevant part of this clause which is said to be engaged is cl 4(1)(a)(ii) in that the Appellant contends that the First Respondent’s development involved the substantial redevelopment or the substantial refurbishment of an existing building (especially having regard to the definition in s 1.4 of the Assessment Act of “building” that includes “part of a building”). Subject to what follows, it can be accepted that a consideration of what is “substantial” is an evaluative exercise. A criterion which requires an evaluative judgment tends against a conclusion that it is a jurisdictional fact in the sense discussed (Woolworths at [53]; Timbarra Protection Coalition Inc (1999) 46 NSWLR 55 at [52]; [1999] NSWCA 8) although it was said to be “rarely … determinative” in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [184] (per Basten JA).
However, two matters should be noted. First, the balance of cl 4 does not appear to involve any evaluative judgments or at least any such judgments of substance. A determination that the development the subject of a DA involves the erection of a new building, the conversion of an existing building, that the building concerned has a least three storeys, etc. or contains at least four dwellings, is not particularly difficult. The same follows in respect of applying the exceptions in cll 4(3) to (4). Only the word “substantial” and the characterisation of the purpose of the development required by the opening words of cl 4(1) require an evaluative judgment. With the former, a test as to whether or not a report about an employee was “substantially favourable” was found to be an objective matter for a court and not a Minister to determine in Sutherland Shire Council v Finch (1970) 123 CLR 657 at 663 and 665 to 666; [1970] HCA 49 (“Finch”). With the latter, the necessity to engage in a process of characterisation was held to be “jurisdictional” in Woolworths.
Second, a consideration of the extent to which the evaluative nature of the test of what is “substantial” in cl 4(1)(a)(ii) bears upon whether satisfaction of that clause is a “jurisdictional fact” in the sense discussed reveals a tension in the Appellant’s argument. As noted, one of the Appellant’s arguments before the primary judge and which is reflected in ground 1 of her appeal is that an assessment of what is a substantial redevelopment involves a consideration of the effect of the development on the amenity of neighbouring properties (and not just on the visual impact of the building being redeveloped). The Appellant seeks to support that argument by contending that cl 4 should be read having regard to the objects and purposes of SEPP 65 including the various design quality principles in Sch 1 which seek to promote the amenity of neighbouring properties. However, the greater the expansion of the scope of the evaluation of what constitutes a substantial redevelopment for the purposes of cl 4(1)(a)(ii), the more likely it is that, on the true construction of the Assessment Act and SEPP 65, it is the consent authority that makes the authoritative assessment on that topic and not a court. To have the determination of whether SEPP 65 applies dependent on whether or not, as a matter of objective fact, an overall assessment of all of the effects of a proposed development on such matters as the character of the neighbourhood as well as the internal and external amenity of neighbouring properties would be productive of great uncertainty and inconvenience. It would render the type of analysis that is often undertaken in the process of considering a DA applicable at the point of determining whether SEPP 65 applies in the first place.
However, as developed below, as I do not accept that the assessment of whether a redevelopment is substantial involves a consideration of external impacts then this result does not ensue. Instead, the process of assessment is that reflected in the primary judge’s approach outlined above. While that does involve an evaluative judgment it is far more confined than that proposed by the Appellant. Like the conclusion in Finch, it is not incompatible with an assessment of the applicability of SEPP 65 being authoritatively determined by a court and not the consent authority.
Accordingly, I am satisfied that, in the context of considering a DA under ss 4.15 and 4.16 of the Assessment Act, the issue posed by cl 4(1)(a)(ii) of SEPP 65 is a matter that is to be determined objectively and not a matter that is authoritatively determined by the consent authority.

Grounds 1, 2 and 3: Addressing What is Substantial

On appeal Mr Robertson contended that in various ways the primary judge erred in concluding that SEPP 65 was not applicable to the First Respondent’s DA. He contended that, if SEPP 65 were applicable, then, subject to considering the effect of s 25B of the Land and Environment Court Act, the DA was invalid because at the very least the Council could not determine the DA without referring it to a design review panel and that did not happen. Leaving that aside, if SEPP 65 were applicable it would mean that in determining the DA, the Council failed to take into account a mandatory consideration, being the “provisions of … any environmental planning instrument … that apply to the land to which the development application relates” (s 4.15(1)).
The Appellant’s notice of appeal includes five grounds, however ground 5 was not pressed. Grounds 1, 2 and 3 all concern the primary judge’s approach to determining whether the DA proposed a substantial redevelopment of an existing building, as follows:

“1. His Honour erred in determining that the proposed development was not substantial redevelopment or substantial refurbishment by excluding from consideration the impact of the additional floor on private views from adjoining buildings [114] at the same time as taking into account the impact on views from the public domain [117].
2. His Honour erred in finding (at [124], noting the typographical error in the indented quote, which should conclude at the second reference to SEPP 65), that cl 4(1)(a)(ii) of SEPP 65 should be construed without regard to the objectives and principles of SEPP 65, and in particular to its emphasis on improving design quality (built form, aesthetics, neighbourhood character, and the amenity of adjacent sites and the neighbourhood).
3.   Despite stating (at [125]-[126]) that he had considered design quality objectives of the SEPP to determine whether he would reach a different conclusion in fact his Honour failed to analyse the impact of the additional storey on design quality including neighbouring buildings, as demonstrated by:
a.   his choice of plans and photographs which he found were required to be taken into account in deciding whether cl 4 was triggered ([135], [136]-[142], [143]); and
b.   his finding that annexures D and F were decisive ([145], [151]),
[n]one of which concern the relationship between the addition and adjoining buildings.”

The Appellant’s submissions addressed ground 2 first. This ground refers to that part of the primary judge’s reasoning summarised above in which his Honour rejected the submission that the question of whether the development is a substantial redevelopment should be answered having regard to the objectives and mechanisms of SEPP 65. The Appellant contended that this approach was inconsistent with s 33 of the Interpretation Act 1987 (NSW) in that it was submitted that the primary judge was obliged to “ask if the competing constructions of ‘substantial redevelopment’ better promoted the stated purposes or objects” of SEPP 65. The First Respondent contended that the primary judge did not find that the aims and objectives of SEPP 65 should not be used to construe cl 4 of SEPP 65 but that the considerations identified in Sch 1 to SEPP 65 [i.e., the design quality principles] when read with the objectives should not be used to construe the application of the instrument.
The Appellant contended that the “more expansive interpretation” she contended for, i.e., one that addressed the external effects of the development, would better promote the stated purposes of SEPP 65. The submissions noted that the primary judge addressed the matter on the basis that the aims and objects were to be considered but contended (correctly) that this alternative finding was only reached by excluding “external impacts”.
The primary judge’s exclusion of a consideration of external impacts was the subject of grounds 1 and 3 of the notice of appeal. Their relationship to ground 2 is illustrated by the Appellant’s contention that the subject matter of impact on external views is reflected in a number of the apartment design quality principles including those noted above and that the primary judge’s approach led to his Honour not selecting images concerning the effect of the development, including those supposedly “showing severe view loss from the [Appellant’s] property”. It was contended that the primary judge’s consideration of the visual impact of the proposed redevelopment on the subject building but exclusion of impact on the views of other buildings revealed a “tension if not an illogicality.”
Ultimately, all these points reduce to the contention that whether, on the proper construction of cl 4(1)(a)(ii), the primary judge’s approach of excluding a consideration of the effect on the amenity (including views) of the proposed redevelopment on neighbouring buildings was correct. Thus, it can be accepted that s 33 of the Interpretation Act did require the preferment of a construction that would promote the purpose and objects of SEPP 65 to one that would not, however that only begs the question of what the available constructions are. Further, while s 33 of the Interpretation Act may be applicable so are all of the relevant principles of statutory construction including the necessity to begin with the text as well as “requir[ing] consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief, it is seeking to remedy” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; citations omitted) as well as considering the utility of the competing constructions contended for.
The text of cl 4 of SEPP 65 is set out above. Leaving aside cl 4(1)(a)(ii) the remainder of its provisions do not involve any consideration of the effect on the amenity or the like of neighbouring properties. Thus, the answer to whether a “new building” is either erected or is not, or whether an existing building is converted or not, does not depend on any assessment of their impact on neighbouring properties. Similarly, a determination of whether or not a building has at least three or more storeys or at least four or more dwellings is not determined by any consideration of neighbouring properties. It is difficult to see why, of all the forms of development specified in cl 4, only a determination of whether the re-development of a building is substantial as contemplated by cl 4(1)(a)(ii) should require a consideration of impacts on the amenity, etc. of neighbouring properties.
Further, as already adverted to, to require the consideration of external impacts in determining whether cl 4(1)(a)(ii) applies would be productive of great uncertainty and inconvenience. It would undermine the proper application of SEPP 65 rather than enhance it. If SEPP 65 is applicable because an assessment of the external effects of the proposal warrants the conclusion that the development consists of a substantial redevelopment, then the outcome of the referral to the design review panel may be the imposition of a condition that renders the effect insubstantial and thus SEPP 65 would no longer be applicable. Otherwise, such a process would lack coherence with s 4.15(1)(b) of the Assessment Act in that the “likely impacts” of the development would be considered both at the point of determining the applicability of an environmental planning instrument said to apply to the land to which the DA relates and in the assessment of the DA it requires.
The primary judge was correct to conclude that the external impacts of the proposed development were irrelevant to a determination of whether the development consists of the substantial redevelopment of an existing building. There was no tension much less illogicality in considering the impact of the proposed development on external views of the building but excluding the effects of the development on the amenity including the views of other buildings. The distinction between the focus on the development of the existing building as required by cl 4(1)(a)(ii) of SEPP 65 and the consideration of the “the likely impacts of that development” as required by s 4.15(1)(b) of the Assessment Act and other provisions of SEPP 65 (or both as the case may be) are mandated by the words of the relevant provisions.
There was no challenge by the Appellant to the primary judge’s assessment of whether the development consists of a substantial redevelopment of an existing building, assuming his Honour’s approach of excluding any consideration of external impacts was correct.
Accordingly, I would reject grounds 1, 2 and 3.

Ground 4: “Part of a Building”

Ground 4 of the notice of appeal is as follows:

“His Honour erred in finding that the development did not consist of the substantial redevelopment or the substantial refurbishment of an existing building.”

Although this ground is expressed in general terms, the Appellant’s written submissions reveal that the substance of the complaint under this ground concerns the primary judge’s approach to the definition in s 1.4 of the Assessment Act of “building” as including “part of a building”. As noted, the primary judge made a finding that the DA did not involve a substantial redevelopment of the apartment block of which the First Respondent’s apartment formed part and which fronts Onslow Avenue as opposed to the larger building, being the two sets of apartments that had a joint underground parking area. However, the primary judge rejected a submission that the phrase “part of a building” should be applied so that “any substantial renovation or substantial refurbishment of a single apartment could automatically trigger engagement of SEPP 65”. [17]
17. Ross v Lane at [98] and [147].
The Appellant’s written submissions reagitated the submission made to the primary judge that the definition of “building” could be applied so as to engage SEPP 65 where it is only proposed that there be a substantial refurbishment of a single apartment. In an echo of the submissions made in relation to grounds 1, 2 and 3 the Appellant contends that such an approach “better promotes the aims of SEPP 65, and is to be preferred” in that it would promote the improvements in the design quality of apartments.
In his submissions, the First Respondent noted that the definition of “building”, like all the definitions in s 1.4 of the Assessment Act, is subject to the phrase “except in so far as the context or subject matter otherwise indicates or requires”. He submitted that it is clear that cl 2 and the balance of SEPP 65 are focused on the quality of residential apartment developments as a whole and that the Appellant’s argument would lead to absurdity as the relevant parts of the building were divided into smaller and smaller elements until the test of what is substantial was satisfied. I agree. A literal application of the definition would simply result in all redevelopments of any apartment on any scale being subject to SEPP 65 which is clearly not the intention of cl 4. The same applies to any attempt to interpret cl 4 as though it were applicable to the substantial redevelopment of any apartment in a building with at least three storeys and four dwellings.

The Appellant’s submissions also sought to rely on (former) Regulation, cll 115(3), (3A) and (3B), the effect of which was that, if there were an application to modify a development consent relating to a residential apartment development and the (original) DA was required to be accompanied by a design verification from a qualified engineer under (former) Regulation, cll 50(1A), then the modification application would need to be accompanied by a statement of a qualified designer on various matters (failing which the application had to be referred to the relevant design review panel). The Appellant noted that there was no requirement that the modification itself involve any substantial redevelopment or substantial refurbishment. It was contended that when this was read with SEPP 65 it meant that “no narrow view is to be taken of cl 4 of SEPP 65”.
This does not assist in the construction and application of cl 4 of SEPP 65. The simple effect of cl 50 of the Regulation is that, if an original DA had to comply with SEPP 65, then a modification to the approved DA had to also comply with SEPP 65. Were it otherwise, the effect of SEPP 65 on the process of approval of the DA could be avoided by subsequently modifying the DA. However, cl 50 of the Regulation has no bearing on whether SEPP 65 is applicable to the original DA; that topic is governed by cl 4 of SEPP 65.
I would reject ground 4.

Proposed Orders:

Mr Robertson contended that, if his client were successful, then the matter should be remitted to the Land and Environment Court to consider the application of s 25B of the Land and Environment Court Act. In light of the above conclusions, I do not consider that any issue of remittal arises.
I propose the following orders:

Appeal dismissed;
The Appellant pay the First Respondent’s costs of the appeal.
1. BASTEN AJA: I agree with Beech-Jones JA that the appeal in this matter must be dismissed with costs. However, in my view the question whether the provisions of State Environmental Planning Policy No 65 (SEPP 65) were engaged was a matter to be determined by the consent authority, subject to judicial review of its decision by the Land and Environment Court.

Jurisdiction

This was a case in which it was essential for the Court to determine the nature and scope of its jurisdiction before embarking on the determination of the proceeding.
The primary judge (Moore J) in the Land and Environment Court did not reach a final conclusion in that respect, although he was inclined to follow the conclusion of Sheahan J in Barton Securities Ltd v Warringah Council [18] that “the decision under cl 4(1)(b) of the SEPP is a jurisdictional fact.” The primary judge reasoned that:

“86 For present purposes, rather than considering whether or not his Honour ‘was plainly wrong’ in the conclusion he reached …, given the conclusion that I have reached in my independent analysis of the factual matrix to be applied to consideration of Mr Lane's proposed development, I propose to proceed by taking Ms Ross's case on this point at its highest. By doing so, I can proceed on the assumption that cl 4(1)(a)(ii) of SEPP 65 does require the determination of a jurisdictional fact and, therefore, proceed straight to explaining why I am satisfied that Mr Lane's proposed development is neither ‘substantial redevelopment of an existing building’ [n]or ‘substantial refurbishment of an existing building’.”
18. [2009] NSWLEC 179; 170 LGERA 223 at [98].

As both parties recognised in this Court, that approach was unsatisfactory. If the question did not in fact give rise to a “jurisdictional fact”, the primary judge had no power to determine it. That exercise did not fall within the jurisdiction of the Land and Environment Court. Although it had not been expressly raised in the notice of appeal, nor by way of a notice of contention in this Court, the issue was squarely addressed by the written and oral submissions of both parties and each was content for the matter to be dealt with by the Court on that basis.
The preferable conclusion is that the applicability of SEPP 65 was not a matter which the Court was entitled to determine for itself, regardless of the conclusion reached by the consent authority. The appellant did not seek to challenge the Council’s decision on conventional judicial review grounds, contending only that the engagement of the SEPP was a matter with respect to which the Court was to form its own opinion. [19] Accordingly, that contention being rejected, the appeal must be dismissed.
19. CA Tcpt, 11/08/22, p 2(3)-(8).

Jurisdictional fact – nature of inquiry

There are different ways of describing the concept underlying the term “jurisdictional fact”. In Trives v Hornsby Shire Council [20] , with the agreement of Macfarlan and Meagher JJA, I proposed the following explanation:

“9   The language of ‘jurisdictional fact’ is commonly used as a basis for review of administrative decisions. A ‘jurisdictional fact’ describes a fact which is an essential precondition to the exercise of a power. For a person to seek to exercise the power absent such a fact is to act without legal authority.
10   Preconditions to the engagement of a power come in different forms. One common form is a requirement that the repository of the power be ‘satisfied’ as to the existence of a particular matter. Perhaps unhelpfully, the existence or absence of such an opinion is itself referred to as a ‘jurisdictional fact’.
11   For legal purposes, facts do not exist, or not exist, in the ether. The existence or otherwise of a fact depends on a body with authority to do so making a finding as to the existence of the fact. To describe a fact as jurisdictional is to say that its existence or otherwise may depend upon a finding, not by the repository of the power, but by a court with the function of reviewing the repository’s decision. As a practical matter, a party challenging the existence of such a fact will be entitled to call evidence and, in effect, carry out a trial in the original jurisdiction of the court, to the extent necessary for the court to determine the fact.” (Footnote omitted.)
20. (2015) 89 NSWLR 268; [2015] NSWCA 158.

There is no precise test which can be applied as a rule to determine whether in a particular circumstance a criterion of engagement of a power is to be determined by the court in the exercise of its original jurisdiction, or whether it is to be determined by the decision-maker, subject to judicial review. Rather, there are a number of considerations which may be taken into account in deciding that issue. [21] What is not in doubt is that “[t]he issue is one of statutory construction.”[22]
21. Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277 at [55] (Payne JA, Bell P and Gleeson JA agreeing).
22. Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [6] (Spigelman CJ; Mason P, Handley JA, Sheller JA and Cripps AJA agreeing).

Statutory language

Where the power is conferred by statute, the primary consideration must be a question of statutory construction. In some circumstances, the issue is expressly addressed: for example, a power may be engaged in circumstances where the repository of the power “is satisfied” or “is of the opinion” that a specified criterion exists. As explained by Gibbs J in Buck v Bavone:[23]

“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”
23. (1976) 135 CLR 110 at 118-119; [1976] HCA 24.

However, where a statute does not express itself in terms of the satisfaction or opinion of the repository of the power, such an intention may nevertheless by inferred from the nature of the power, the circumstances in which it comes to be exercised, and by reference to other principles relevant to the proper construction of a statute. In the present case, the statute, namely the Environmental Planning and Assessment Act 1979 (NSW) (“Assessment Act”), does not answer the question in express terms and, accordingly, a wider inquiry is necessary.

A structural approach

An earlier case dealing with the Assessment Act, Woolworths Ltd v Pallas Newco Pty Ltd,[24] involved a question as to whether a particular development application fell within a category of developments permissible with consent in the relevant zoning, namely a “drive-in take-away establishment”. Spigelman CJ, while conceding the need to balance a set of “indicators”, gave significant weight to a characterisation of the criterion, the determination of which was described as “legally antecedent to the decision-making process”. [25] He continued:

“49 A factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process itself, is a reference of a character that the Parliament intended to exist objectively.
…
51 Section 79C(1)(a)(i) requires a consent authority to take into consideration the provisions of any environmental planning instrument, but classification is not a part of the plan that arises during the course of the evaluation process. The determination of whether a particular development proposal answers the classification of ‘drive-in take-away establishment’ appears to me to be a reference accurately described as either extrinsic or preliminary or ancillary to the exercise of the power to grant consent. It is not a matter that falls to be considered under s 79C, in the course of making a determination under s 80.”
24. See fn 21 above.
25. Woolworths Ltd at [47].

Although expressed in conclusory terms, suggesting that all factors identified in s 79C (now s 4.15) of the Assessment Act should be characterised as extrinsic to the decision-making process, it may be doubted that any such dogmatic assertion was intended. That is because the Chief Justice identified certain indicators specific to a proposed “prohibited development” (discussed below) and went on to consider a number of “indicators against jurisdictional fact”. These should also be identified.

An evaluative determination

A criterion of engagement may be characterised in different ways. On the one hand, it may require identification of a fact identifiable in precise terms: Does the building have more than seven storeys above ground level? On the other hand, it may identify a fact in terms about which reasonable minds might differ. As explained in Woolworths Ltd:

“53   The first factor which may support a conclusion that the appropriate classification of a proposed development is not jurisdictional concerns the element of fact and degree involved when determining whether or not a particular proposal answers the statutory description.
…
56   Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction.
57   Determining whether a factual reference is jurisdictional in the context of classification under an environmental planning instrument will depend on the way the classification is expressed. The degree of flexibility which the Act permits with respect to the description of uses is such that Parliament must be taken to have authorised the adoption of classifications which are not jurisdictional as well as those which are jurisdictional.”

There may, however, be a difficulty in drawing such a distinction where the statute includes in one provision criteria some of which are precisely defined and others of which involve matters of degree. It may be unlikely that the legislature intended some to be “jurisdictional facts”, but not others.

Consequential considerations

Woolworths Ltd also accepted the need to have regard to the consequences of a criterion being identified as jurisdictional. This reflected the concern explained by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte,[26] albeit in relation to the jurisdiction of a magistrate:

“It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.”
26. (1938) 59 CLR 369 at 391; [1938] HCA 7.

Such a concern also arises in relation to determinations appearing on a public register and affecting rights in land. In the present circumstances, this consideration will tend to merge with the next. Clearly there is inconvenience in providing for any degree of review of development consents. A consent confers valuable rights which travel with ownership of the property concerned. The period within which review is possible is limited to three months, but the contention that a consent is a nullity, because the power to consent was not available, would potentially avoid the legitimate public interest in early determination of such questions. (This issue was considered in Woolworths Ltd, but the consequence was avoided by giving a constrained operation to a privative provision in the Assessment Act.)

Statutory context

An important factor in determining whether a condition or criterion is jurisdictional is to consider how it operates in the particular statutory context in which it appears. In Australian Heritage Commission v Mount Isa Mines Ltd [27] the High Court considered whether a criterion for placing matters on the Register of the National Estate constituted a jurisdictional criterion, or rather one for determination by the Commission. The criterion was identified in inherently evaluative language, the Act providing that “the national estate consists of those places, being components of the natural environment of Australia or the cultural environment of Australia, that have that aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community”. Mount Isa Mines contended that the definition created a jurisdictional criterion. It was not, however, merely the evaluative language which persuaded the High Court otherwise. The Court stated: [28]

“The construction of the Act proposed by MIM would produce the result that, notwithstanding the detailed provisions made in this legislation for the giving of public notices and the receipt and consideration of objections, and notwithstanding the significant steps which may have been taken in public administration for a wide variety of laws by reason of the existence of an entry in the Register, a decision of the Commission to register will at all relevant times remain liable to challenge for absence of the requisite ‘jurisdictional fact’ to enliven the obligation of the Commission to make the entry.
Those detailed mechanisms for public consultation and consideration by the Commission provide guidance on the ultimate issue in this litigation. They suggest that, on the proper construction of the Act, the Commission is given the power conclusively to determine whether or not a place should be recorded as part of the national estate and its determination of that question is not subject to review provided the Commission otherwise conducts itself in accordance with the law.”
27. (1997) 187 CLR 297; [1997] HCA 10.
28. Australian Heritage Commission at 306 (footnote omitted).

It is necessary therefore to have regard to the statutory context which governs the process of obtaining a development consent.

Background

The circumstances in which the question arose have been explained by Beech-Jones JA and can be stated briefly here. On 20 August 2020 the consent authority (Sydney City Council) gave notice of its determination to approve the first respondent’s development application for the construction of a further development on the common property (roof) of an apartment building in Elizabeth Bay. On 11 November 2020 (within the three-month period permitted by s 4.59 of the Assessment Act to challenge the decision), the appellant commenced proceedings in the Land and Environment Court seeking a declaration that the decision was invalid.
In granting approval, the Council did not apply the provisions of SEPP 65. An officer of the Council responsible for considering that issue had decided that SEPP 65 was not engaged. She did so by determining that the development proposed in the development application did not constitute “the substantial redevelopment … of an existing building” for the purposes of cl 4(1)(a)(ii) of SEPP 65, being the potentially relevant condition of engagement.

Application of principles

As the foregoing discussion of legal principles establishes, the “jurisdictional fact” issue is to be determined as a matter of construction of the relevant legislation, in this case the Assessment Act. The statutory scheme embodied in the Assessment Act has not changed in a material respect since the judgment of this Court in Woolworths Ltd. Accordingly, the Court should follow the approach adopted in Woolworths Ltd. However, because the particular circumstances of this case differ from those in Woolworths Ltd, the outcome of the analysis in that case does not govern the outcome in this case.
As explained by Spigelman CJ in Woolworths Ltd, the process for granting development consent was then set out in Div 2 of Pt 4 of the Assessment Act. Section 77(a) stated that the Division “applies to development that may not be carried out except with development consent”. The Chief Justice noted:

“29 These proceedings raise the issue of what, if any, is the effect of a consent under Div 2 of Pt 4 if, as a matter of objective fact, the development is a prohibited development to which, on a literal interpretation of s 77(a), the Division does not apply.”

The Chief Justice then addressed a number of indicators suggesting that the issue was one of jurisdictional fact. He identified the first two indicators in the following terms:

“30 The first indicator arises from the scope and purpose of the legislative scheme creating zones and identifying permissible and prohibited uses within zones. The purpose of such zoning is to segregate uses from each other and to concentrate particular uses within specific areas. This process of segregation and concentration serves a variety of social and economic purposes which are considered through the detailed stages of the promulgation of a local environmental plan.
…
32 The second indicator is the terminology of ‘prohibition’ itself and the statutory implications of development being prohibited. The very word ‘prohibited’ has a level of force more consistent with a finding of jurisdictional fact than with the conferral of an ability to err within jurisdiction. In the present scheme, the force of the terminology adopted is reinforced by specific statutory provision.”

The Chief Justice observed that use of the land for prohibited development would constitute an offence, concluding that “the fact that what is involved is a contravention of the Act that constitutes a criminal offence is a strong indicator that the fact is jurisdictional”: at [37].
After considering the reasoning of the High Court in Corporation of the City of Enfield v Development Assessment Commission,[29] the Chief Justice continued:

“45 A third indicator in the legislative scheme under consideration is found in provisions of the Act which increase the flexibility of the legislative scheme in specific circumstances. The significance of these provisions for present purposes is that they operate on the assumption that a prohibition on use means what it says ….
…
51 Section 79C(1)(a)(i) requires a consent authority to take into consideration the provisions of any environmental planning instrument, but classification is not a part of the plan that arises during the course of the evaluation process. …
52 That this is so is strongly suggested by s 77(a) … which provides that the Division, including all of the steps from s 79A to s 80, only applies if the development may not be carried on except with consent. Unless the development proposal can be accurately said to fall within the classification, none of the steps are applicable.”
29. (2000) 199 CLR 135; [2000] HCA 5.

The contraindications outlined by the Chief Justice have been referred to above and need not be repeated.
It is immediately apparent that the issue raised in the present case differs in significant respects from that in Woolworths Ltd. It does not involve prohibited development, but development which can be carried out with consent. Accordingly, what is now Div 4.3 of the Assessment Act, dealing with development that needs consent,[30] is undoubtedly engaged. It follows that the various steps in Div 4.3, described in s 4.11 as the “main steps in the development consent process” are those set out in ss 4.12-4.18 and relevant parts of the Environmental Planning and Assessment Regulation 2000 (NSW) (“2000 Regulation”). [31] The terms of s 4.15 (Evaluation) have been set out above, [32] and it will be convenient to return to aspects of that provision. First, the terms of s 4.16 should be noted:
30. What was then s 77 is now s 4.9.
31. On 1 March 2022 the 2000 Regulation was replaced by the Environmental Planning and Assessment Regulation 2021 (NSW).
32. See [36] above.

4.16   Determination (cf previous s 80)
(1)   General A consent authority is to determine a development application by—
(a)   granting consent to the application, either unconditionally or subject to conditions, or
(b)   refusing consent to the application.

(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

…
(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.

Prohibited development aside, a consent authority is obliged to determine whether or not to grant consent to a development application (s 4.16) and is required to carry out an evaluation taking into consideration the matters specified in s 4.15. Some of those matters will apply to some applications but not others, so that the obligation is to take into account “such of the following matters as are of relevance to the development the subject of the development application”. There can be no doubt that such matters as the likely environmental impacts of a development, the suitability of the site, submissions made by members of the public and the public interest (as identified in subs (1)(b)-(e)), are all matters which the consent authority must (so far as relevant) take into account: they cannot reasonably be described as matters which are “preliminary or ancillary to” the decision-making process, nor as raising facts and matters “extrinsic to” that process, so as to require separate determination by a court. There is nothing in the wording of these provisions which would lead to a different view as to operation of par (a) and the matters specified therein. Whilst par (a) qualifies the categories listed with the words “that apply to the land to which the development application relates”, it may be doubted that any different exercise is engaged than that of determining matters as being “of relevance”.
In the course of his reply, senior counsel for the appellant explained how a design review required under SEPP 65 would provide a focus for issues of “visual privacy” and “view sharing” which lay at the heart of the appellant’s objection to the development. In response to a question from the presiding judge, he acknowledged that those matters could well arise separately under pars (b), (c) and (d) of s 4.15(1). [33] That concession, which was undoubtedly correct, militates against any statutory basis for treating some instruments to which reference was required under s 4.15(1)(a) as involving jurisdictional facts, whereas considerations in pars (b)-(e) did not.
33. CA Tcpt, 11/08/22, p 8(5)-(11).
There can be legal questions as to the operation of an environmental planning instrument. However, there is extensive provision in Pt 8 of the Assessment Act for reviews and appeals with respect to the grant of development consent, or the refusal of an application for development consent. The inconvenience which would arise if any question of fact or law as to the application of any instrument identified in par (a) required resolution by a court in order to determine the validity of the process of evaluation undertaken by the consent authority. That consequence militates against the drawing of any such implication. The language of s 4.15 itself provides no basis for such an implication, in circumstances where the section expressly confers power, and indeed obligations, on the consent authority and not on a court.
Finally, counsel for the appellant was at pains to emphasise that, in a practical sense, the question as to the engagement of SEPP 65 did not commence at the point at which the consent authority carried out its evaluation of the application. Rather, it arose at a number of earlier stages which counsel summarised as follows: [34]

“In the first instance, the application itself must be accompanied by a design verification statement, and that statement must demonstrate how the provisions of the apartment design guide and the SEPP have been taken into account in designing the apartment building. That must be lodged with the development application.
The matter then proceeds to a panel which the minister appoints [as a] design review panel, and the design review panel must give advice to the consent authority on whether the proposal is appropriate in the circumstances, having regard to SEPP 65. Then, the next step is for the consent authority to determine the matter, and in determining it, the consent authority must have regard to SEPP 65, it must have regard to the advice of the design review panel.”
34. CA Tcpt, 11/08/22, pp 2(47)-3(9).

He further noted in submissions in reply that the 2000 Regulation required that, where SEPP 65 applied, various materials were to be included in the development application. [35]
35. 2000 Regulation, cl 50(1)(b), (c) and Sch 1, Pt 1, cl 2(5).
There is no doubt that the process of preparing a development application will require of the landowner (or his or her agent) a degree of sophisticated planning knowledge as to what controls must be complied with and what forms must be completed. However, the fact that important preparatory steps may need to be taken before the powers of the consent authority are engaged provides no basis for inferring that compliance with those steps is a matter which can only be determined in the court and not by the consent authority, but rather the contrary. Indeed, as the chronology in this case demonstrates, there were ongoing exchanges between the applicant for consent and the Council as to what material was appropriate or necessary. So far as it is relevant, the 2000 Regulation expressly envisaged that a consent authority could request information relating to any relevant matter “referred to in s 4.15(1)(b)-(e) of the Act or in any relevant environmental planning instrument”. [36] If the Regulation can assist in construing the Act, the appropriate inference is that the consent authority is expected to consider what environmental planning instruments are relevant to the application and what are not.
36. 2000 Regulation, cl 54(3).
It follows that, as a matter of construction of the Assessment Act, the application of the environmental planning instruments, including SEPP 65, in a particular case where development is permissible with consent, is a matter for consideration by the consent authority in the first instance (subject to statutory forms of review and appeal) and does not require (or permit) determination by the court.

Construing the instrument

Although the submissions of both parties in the course of the hearing focused on the operation of cl 4 of SEPP 65 (stating when the terms of the SEPP applied), there was no explanation as to how the language of the legislative instrument in question could determine the operation of the statute. The better view is they cannot. [37] The various questions of construction of the instrument are therefore beside the point.
37. Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 at [39] (Crennan, Bell and Gageler JJ).

Conclusion – jurisdictional fact

There is nothing in the language of the Assessment Act which states or necessarily implies that a question as to the application in a particular case of a particular environmental planning instrument is a matter which can only be determined authoritatively by the court. Rather, by requiring the consent authority to have regard to certain matters, the appropriate implication is that the consent authority is empowered and required to determine which matters are relevant, and how they are engaged, in relation to a particular development application.
By contrast with the issue in Woolworths Ltd (whether a proposed development was prohibited development and therefore did not fall within the assessment function), the engagement, in relation to development concededly permissible with consent, of particular environmental planning instruments is a part of the function conferred on the consent authority under s 4.15 for the purposes of determining whether to grant consent under s 4.16. There is no clearly distinguishable function of classification as there was in determining whether the power of the authority to grant consent was engaged at all.
For this reason, the only basis upon which the appeal could succeed was not made out. It follows that the appeal should be dismissed.

**********

Endnotes

Decision last updated: 17 November 2022

Medium Neutral Citation:	Ross v Lane [2022] NSWCA 235
Hearing dates:	11 August 2022
Date of orders:	17 November 2022
Decision date:	17 November 2022
Before:	Macfarlan JA at [1]; Beech-Jones JA at [6]; Basten AJA at [69]
Decision:	(1) Appeal dismissed. (2) Appellant to pay the First Respondent’s costs of the appeal.
Catchwords:	ADMINISTRATIVE LAW – jurisdictional facts – applicability of State Environment Planning Policy 65 – whether application of SEPP 65 was a matter for the Court or the consent authority to determine PLANNING LAW – planning approval – development application – applicability of State Environment Planning Policy 65 – Design Quality of Residential Apartment Development (“SEPP 65”) – Council approved development application for modifications and extensions to the first respondent’s apartment including construction of additional storey – substantially affected views from one floor of appellant’s apartment in neighbouring block –whether development approval invalid – whether SEPP 65 applicable – whether SEPP 65 complied with –– whether development application involved the “substantial redevelopment or the substantial refurbishment of an existing building”
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW), s 135 Interpretation Act 1987 (NSW), s 33 Land and Environment Court Act 1979 (NSW) ss 25B, 58 Environmental Planning and Assessment Act 1979 (NSW) ss 1.4, 4.9, 4.11-4.18, 4.59 Environmental Planning and Assessment Regulation 2000 (NSW), cll 50, 54; Sch 1, Pt 1, cl 2
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10 Barton Securities Ltd v Warringah Council [2009] NSWLEC 179; 170 LGERA 223 Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 Colonial Bank of Australasia Ltd v Willan (1874) LR 5 PC 417 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA147 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 32 Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277 SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 Sutherland Shire Council v Finch (1970) 123 CLR 657; [1970] HCA 49 Timbarra Protection Coalition Inc (1999) 46 NSWLR 55; [1999] NSWCA 8 Trives v Hornsby Shire Council & Ors (2015) 89 NSWLR 268; [2015] NSWCA 158 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Category:	Principal judgment
Parties:	Olivia Ross (Appellant) Patrick Lane (First Respondent) The Council of the City of Sydney (Second Respondent)
Representation:	Counsel: Mr T Robertson SC; Mr T To (Appellant) Mr I Hemmings SC; Ms J Reid (First Respondent) Submitting Appearance (Second Respondent) Solicitors: Benjamin & Khoury (Appellant) Swaab (First Respondent) A Singh – Sydney City Council (Second Respondent)
File Number(s):	2021/333379
Decision under appeal	Court or tribunal: Land & Environment Court Jurisdiction: Class 4 Citation: [2021] NSWLEC 121 Date of Decision: 4 November 2021 Before: Moore J File Number(s): 2020/321900