The recent case of Canterbury-Bankstown Council v Realize Architecture Pty Ltd sheds light on critical legal nuances in appealing the decisions of Commissioners in the Land and Environment Court.

Background

In this case, Realize Architecture Pty Ltd sought to modify an existing development consent for a project at 1-13 Close Street and 242-258 Canterbury Road, Canterbury. The initial consent was granted for a high-density residential development, but the proposed modifications included changes such as reconfiguring car parking and community spaces, and adding extra floors. The Commissioner found that these modifications did not alter the essence of the original development, and so the modifications fulfilled the requirement under section 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) that the modified development be “substantially the same” as the originally approved development. The Council appealed the decision of the Commissioner and the appeal was heard by the Chief Judge of the Land and Environment Court.

The basics of Section 56A appeals

A Section 56A appeal is a specific legal mechanism used to challenge decisions made by a Commissioner in the Land and Environment Court of New South Wales. This type of appeal focuses strictly on errors of law rather than disputes over facts or the merits of the decision itself.

In Canterbury-Bankstown Council v Realize Architecture Pty Ltd, the Court was required to examine whether there was an error in law by the Commissioner. This means the focus was only on whether the decision made by the Commissioner was legally sound. The Court’s process on appeal involved reviewing three main tasks:

1. Finding the Primary Facts: The Commissioner first establishes the basic facts of the case. This involves looking at evidence before the Commissioner and determining the specific details of how the development would be modified, such as changes in height, bulk, scale, floor space, open space, and usage. An appeal on this ground could argue that the Commissioner’s factual findings lack a basis in the evidence presented.
2. Interpreting the Law: Next, the Commissioner must correctly interpret the legal terms and requirements. Misinterpreting the words or phrases of the relevant law (in this case, section 4.55(2) in relation to modifications of development consents) would constitute an error of law. However, simply applying the law incorrectly to the established facts is not enough to succeed in an appeal. It has to be shown that the law itself was misunderstood or misinterpreted.
3. Categorising the Facts: Finally, the Commissioner must decide whether the facts as found fit within the legal framework. In this instance, it involves an evaluative judgment about whether the modifications are “substantially the same” as the original development. An error here could occur if the Commissioner wrongly categorises the facts against the statutory criteria.

Errors of law can occur at any of the above stages, but they differ in nature. For example, there can be:

1. Errors in Finding Facts: An error of law occurs if the primary facts found by the Commissioner have no evidence to support them. However, if there is some evidence, even if it’s not compelling, it’s typically not considered an error of law.
2. Misinterpretation of Law: If the Commissioner misinterprets the statutory language or criteria, this is a clear error of law. For example, misunderstanding what “substantially the same” means in the context of the modifications.
3. Incorrect Categorisation: If the facts found cannot reasonably be interpreted to fit within the legal criteria, and yet the Commissioner decides they do, this is also an error of law.

For the Council’s appeal to be successful under Section 56A, it must be clearly demonstrated that the Commissioner made a legal error in one of these areas. It is not enough to simply disagree with the outcome or believe that the decision was unfair. The appeal must show that the law was applied incorrectly or that the decision was based on a factual finding that was unsupported by evidence. Understanding these nuances is critical in preparing a robust appeal, ensuring that the focus remains on legal errors rather than subjective disagreements.

The Council’s Case and Court determination

The Council’s appeal was based on several grounds, including the contention that the modifications significantly changed critical elements of the development.

1. The “Chain of Reasoning” Ground – The first significant ground of appeal raised by Canterbury-Bankstown Council revolved around the alleged error in the Commissioner’s chain of reasoning. The Council argued that the Commissioner incorrectly assessed whether the modified development was “substantially the same” as the originally approved development. Specifically, they contended that the Commissioner improperly separated quantitative and qualitative differences, leading to an erroneous summation of these differences to conclude that the modified development was substantially the same. The Court dismissed this ground, clarifying that the Commissioner had correctly undertaken a holistic assessment of both quantitative and qualitative aspects. The Court noted that the Commissioner’s approach was consistent with the statutory requirements of section 4.55(2)(a) of the EPA Act. The Commissioner did not simply sum negative and neutral determinations but conducted an evaluative comparison of the entire development, as required by law.
2. The “Critical Elements” Ground – The second ground, termed the “critical elements ground,” focused on the Council’s assertion that the modifications involved significant changes to critical elements of the development, such as the reconfiguration of parking and the addition of extra floors. The Council argued that these changes were substantial enough to render the modified development not “substantially the same” as the original. The Court found no merit in this ground, supporting the Commissioner’s conclusion that no critical element was significantly altered to the extent that it would change the fundamental nature of the development. The Court emphasised that identifying and comparing “critical elements” is not a mandatory legal requirement under section 4.55(2)(a); instead, the overall essence of the development must remain unchanged. The Commissioner’s findings were thus upheld as they were based on a comprehensive evaluation of the development as a whole.
3. The “Consequences” Ground – The final grounds of appeal, grouped as the “consequences ground,” involved the Council’s contention that the Commissioner mistakenly adopted the approach of the respondent’s town planner, focusing only on the consequences or impacts of the modifications rather than on the modifications themselves. The Council argued that this approach conflated the merit assessment with the jurisdictional enquiry under section 4.55(2)(a). The Court rejected this argument, noting that the Commissioner had indeed conducted a proper qualitative assessment, considering both the modifications and their impacts. The Commissioner’s acceptance and adoption of the town planner’s evidence were found to be consistent with the statutory requirements. Furthermore, the Court reiterated that any misapplication of the law, as alleged by the Council, does not constitute an error on a question of law but rather a factual determination that falls within the Commissioner’s jurisdiction.

In summary, the Court upheld the Commissioner’s findings on all grounds. The Council’s inability to demonstrate any legal misinterpretation or misapplication led to the dismissal of the appeal and an order to pay the Developer’s costs.

Key Takeaways

Parties intending to launch a section 56A appeal must be acutely aware of the stringent requirements and limitations of this legal pathway. A section 56A appeal is strictly confined to questions of law, meaning that local councils cannot appeal merely because they disagree with the Commissioner’s decision or believe it was unjust. Instead, they must demonstrate that the Commissioner made a legal error in interpreting or applying the law. This involves approaches such as proving that the factual findings were unsupported by evidence, that there was a misinterpretation of the legal provisions, or that the facts were incorrectly categorised within the statutory framework. Parties should meticulously prepare their appeals, ensuring they clearly outline the specific legal errors and provide robust legal arguments to support their case. Additionally, they should be prepared for the fact that the appeal process will not re-evaluate the factual basis of the original decision but will focus solely on the legal principles involved.

Understanding these nuances is crucial for parties to effectively navigate the appeal process and avoid unnecessary legal expenses and cost orders.

Further reading

You can access a copy of the judgment below.