Canterbury-Bankstown Council v Realize Architecture [2024] NSWLEC 31

Before a consent authority can approve a modification application, it must be satisfied that the modified development ‘is substantially the same development as the development for which consent was originally granted’, under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).

In past years, the Land and Environment Court has taken various approaches to the application of the ‘substantially the same’ test.

In a recent decision, Chief Justice Preston of the Land and Environment Court goes back to basics and simplifies the application of the test.

Key takeaways

• The test in s 4.55(2)(a) of the EPA Act is a holistic one of comparing two developments – the consent authority must be satisfied that the two developments being compared are substantially the same, not that either the qualitative features or the quantitative features are substantially the same.

• The test does not demand an identification and comparison of ‘critical elements’ – this inquiry can support the comparative exercise required by s 4.55(2)(a) but is not legally required.

Background

The respondent had appealed against the Council’s refusal of its modification application.

At first instance, Commissioner Espinosa approved the modification application, finding that she was satisfied that the development was ‘substantially the same’ under s 4.55(2)(a).

The Council appealed against Commissioner Espinosa’s decision, arguing that the Commissioner had made an error of law when applying s 4.55(2)(a).

Decision

Chief Justice Preston held that the ‘substantially the same test’ requires a consent authority to undertake three steps:

1. Finding the primary facts;

2. Interpreting the law; and

3. Categorising the facts as found.

The first step, finding the primary facts, involves identifying how the approved development and the modified development differ. This involves the examination and identification of ‘the components or features of the development that would be modified, such as height, bulk, scale, floor space, open space and use, and the impacts of the modification of those components or features of the development’.

Secondly, a consent authority is to interpret ‘the words and phrases of the [substantially the same test] as to their meaning’.

Thirdly, a consent authority must determine whether the facts found in Step 1 ‘fall within or without the statutory description’ of the substantially the same test. This evaluative task requires consent authorities to assign ‘relative significance or weight to the different facts and a balancing of the facts, as weighted’.

Importantly, Preston CJ commented at [26]:

Th[e] comparison [in the ‘substantially the same’ test] can involve “an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context” … But the comparison required by s 4.55(2)(a) remains a holistic one of the two developments being compared – the modified development and the originally approved development. The opinion of satisfaction that s 4.55(2)(a) requires is that the two developments being compared are substantially the same development, not that either the quantitative features or the qualitative features of the two developments are substantially the same.

In other words, to assist in undertaking a comparison between the two developments, a consent authority may compare the differences in the qualitative and quantitative aspects of the modified and approved developments. However, this exercise ‘cannot displace the test in s 4.55(2)(a)’, nor is it statutorily required.

Moreover, the Court held that there is no legal requirement to identify whether a ‘critical element’ of a development is proposed to be modified. The adoption of this inquiry arose in support of Stein J’s interpretation of ‘substantially the same’ as ‘essentially or materially or having the same essence’ in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8. The fact that judges in some cases chose to undertake this inquiry ‘does not make such an inquiry a legal requirement under s 4.55(2)(a)’.

As such, applying the ‘substantially the same’ test involves three tasks: finding the primary facts, interpreting the law, and categorising the facts. A comparison of qualitative and quantitative aspects of the approved development and modified development, and the identification of critical elements of a development, are tools to assist in assessing whether proposed modifications satisfy the ‘substantially the same’ test, not legal requirements of the test in s 4.55(2)(a) of the EPA Act.

Further information

For more on the ‘substantially the same’ test, see our articles below:

• Dentons - Signs point to no: When the Court will reject a modification application
• Dentons - Modification applications need to look at the elements of the original consent to remain ‘substantially the same’