Joseph v Spencer

1. [1]

   STERN JA: The applicant, Michael Joseph, and the first and second respondents, Ricardo and Jennifer Spencer (Spencers), own adjoining properties on North Kiama Drive, Kiama Downs, within the area administered by the third respondent (Council). The Spencers wish to make alterations and additions to their dwelling on Lot 859, DP 231616, also known as 110 North Kiama Drive. That development is described in the development application they submitted (DA) as the partial removal of existing structures and construction of new decks, balconies, retaining walls and landscaping. Mr Joseph objects to this development. That dispute is the genesis of these proceedings, in which Mr Joseph seeks judicial review and declaratory relief in respect of a decision of 30 August 2024 of Commissioner Dickson of the Land and Environment Court (Commissioner and Court, respectively) under s 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act): Spencer v Kiama Municipal Council (No 2) [2024] NSWLEC 1526 (Commissioner’s decision).

2. [2]

   Mr Joseph made submissions to the Council objecting to the development proposed in the DA. The Council, which filed a submitting appearance in these proceedings, refused consent to the DA on 8 February 2024. On 13 May 2024 the Spencers filed an appeal in the Class 1 jurisdiction of the Court (LEC proceedings) under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Mr Joseph was not a party to those proceedings (although, as set out below, he sought to be joined).

3. [3]

   As was required, a conciliation conference was arranged in the LEC proceedings, pursuant to ss 34 and 34AA(2)(a) of the LEC Act, on 12 and 13 August 2024, presided over by the Commissioner. The Spencers and the Council reached agreement at that conference as to the terms of a decision that would be acceptable to them. The Commissioner was thus required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the decision and set out in writing the terms of that decision subject to two threshold requirements: that agreement had been reached as to the terms, and that the decision agreed upon was one “that the Court could have made in the proper exercise of its functions”.

4. [4]

   The Commissioner was satisfied as to both matters and made orders that the appeal be upheld and development consent be granted, subject to conditions set out in an annexure to the orders. Condition 1 required that the development be carried out in accordance with approved plans and documents, some of which had been updated as a result of the agreement reached at the conference (approved plans and documents). In her decision, the Commissioner noted that the Council had agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) to the Spencers’ amendment of the DA in accordance with the approved plans and documents identified in condition 1.

5. [5]

   By amended summons filed on 26 June 2025 Mr Joseph, who has no right of appeal against the Commissioner’s decision, seeks an order under s 69 of the Supreme Court Act 1970 (NSW) setting aside the Commissioner’s decision and declaratory relief under s 75 of the Supreme Court Act. He contends that the decision suffers from jurisdictional error and error of law on the face of the record. The Spencers deny that there is any jurisdictional error or material error of law on the face of the record, deny that an order setting aside the decision is available on that basis and say that, in any event, this Court should decline relief in the exercise of its discretion. Given the conclusions I have reached on the substance of his complaints, it is unnecessary to consider the Spencers’ contention, relying upon Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd & Anor (2018) 264 CLR 1; [2018] HCA 4 that, in this statutory context, there is no jurisdiction to make an order in the nature of certiorari for non-jurisdictional error of law on the face of the record. It is also unnecessary to consider what constitutes “the record” for the purpose of a contention of error of law on the face of the record as, even on the most expansive view of the record proposed by Mr Joseph, there was no error of law.

6. [6]

   As explained to Mr Joseph at the hearing of this application, his grounds for seeking relief are limited to those which he was granted leave to rely upon in his amended summons. This judgment addresses only those grounds.

7. [7]

   For the reasons set out below, the amended summons should be dismissed with costs.

Relevant Background

1. [8]

   The Spencers lodged the DA with the Council on 2 August 2023. One of the documents they filed in support of the application was a Statement of Environmental Effects dated 15 April 2023 prepared by Smith & Tzannes (2023 SEE). Section 4 of the 2023 SEE was headed “Review of Relevant Planning Controls”. The planning controls considered in the 2023 SEE were the State Environmental Planning Policy (Resilience and Hazards) 2021, the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the Kiama Local Environmental Plan 2011 (KLEP) and the Kiama Development Control Plan 2020. The authors assessed that the proposed development (as set out in the DA) was satisfactory when assessed under the heads of consideration in s 4.15 of the EPA Act and was consistent with State, Regional and Local planning provisions.

2. [9]

   The authors of the 2023 SEE considered that the proposed development, or some of it, was not permitted under cl 6.7(2) of the KLEP, albeit, that it was consistent with the objective in cl 6.7(1), and did not restrict public access to the foreshore, as must be considered under cl 6.6. The 2023 SEE therefore included an application under cl 4.6 of the KLEP for development consent to be granted notwithstanding non-compliance with cl 6.7(2), on the basis that strict compliance with cl 6.7(2) was unnecessary or unreasonable as the proposal achieved the objectives of the standard, and the particular context and circumstances of the site and arrangement of the plan provide a superior amenity outcome.

3. [10]

   The KLEP is an environmental planning instrument as defined in s 1.4 of the EPA Act. Its provisions thus have to be taken into account in an evaluation of a DA by a consent authority under s 4.15(1)(a)(i) of the EPA Act. It was common ground before this Court that cl 6.7(2) of the KLEP was a jurisdictional constraint upon the grant of development consent, meaning that development consent could not lawfully be granted unless it was either complied with or a decision under cl 4.6 was made that development consent should be granted notwithstanding non-compliance. Clause 6.7 of the KLEP provides:

4. [11]

   The DA was notified by the Council from 11 August to 11 September 2023 and submissions objecting to the development from Mr Joseph, including an expert report from Mr Jeff Mead, which was submitted on behalf of Mr Joseph, and from Mr John Leftwich, whose property was adjacent to that of the Spencers but on the other side to Mr Joseph’s property, were received by the Council. Those submissions were before the Commissioner when she made her decision.

5. [12]

   As already set out, the Council refused consent to the DA on 8 February 2024. One of the six reasons the Council gave for the refusal was:

6. [13]

   The LEC proceedings were commenced on 13 May 2024. On 14 June 2024 the Council filed its Statement of Facts and Contentions (SOFAC). One of the Council’s submissions was that the DA failed to comply with cl 6.7(2) of the KLEP.

7. [14]

   By letter dated 17 June 2024 the Council, through its solicitors, notified Mr Joseph of the LEC proceedings and of the conciliation conference on 12 and 13 August 2024. He was informed that the presiding Commissioner would conduct a site visit at the commencement of the conference and may permit residents to speak to their concerns with the DA at this time.

8. [15]

   On 22 July 2024 Mr Joseph sought to be joined as a party to the LEC proceedings pursuant to either or both of s 8.15(2) of the EPA Act or r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). His application was refused by Robson J on 1 August 2024: Spencer v Kiama Municipal Council [2024] NSWLEC 80.

9. [16]

   On 1 August 2024 a Joint Planning and Urban Design Expert Report (JER), prepared by Dr Ryan (the Council’s planning expert), Ms Bartlett (the Spencers’ planning expert) and Mr Smith (the Spencers’ urban design expert) was filed in the LEC proceedings. The experts agreed that the permissibility of the development was a matter for legal submission. The experts disagreed as to whether the development fell within the exceptions in cl 6.7(2) of the KLEP or was precluded by cl 6.7 of the KLEP, but noted that a variation request under cl 4.6 of the KLEP had been prepared to support the amended development drawings dated 26 July 2024. The experts agreed that:

10. [17]

    At the site visit, Mr Joseph made oral and written submissions objecting to the DA on his own behalf and on behalf of Mr Leftwich. Mr Joseph’s written submission included submissions including as to the planning history at the site and as to the application of cl 6.7 of the KLEP. Consistent with the Conciliation Conference Policy in the Court, beyond the site visit, discussions at the conciliation conference were confidential.

11. [18]

    As already noted, the Spencers and the Council reached agreement at the conciliation conference as recorded in a Consent Agreement which stated:

12. [19]

    The relevant amendments to the DA are apparent from a comparison between the plans accompanying the original and amended DA applications. They involve: a reduction in the size of the first-floor terrace extension and awning, moving the extension further to the north and away from Mr Joseph’s property, reducing the height of the lower terrace by 195 mm and reducing the size of a planter box by roughly 20 centimetres in two dimensions. The changes to the terrace and awning, and the location of the foreshore building line, are apparent from the following plans extracted in the Spencers’ written submissions, which form part of the DA and amended DA respectively:

13. [20]

    Two observations must be made about the amendments to the DA:

    1. (1)

       They do not significantly alter the character of the development in the sense described, for example, in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 at [54] (Basten JA, with whom Handley JA and Hunt AJA agreed). It retains all relevant characteristics of the development in the DA.

    2. (2)

       All of the changes in the amended DA diminish the impact of the development on neighbouring properties, including Mr Joseph’s.

14. [21]

    An Addendum Statement of Environmental Effects (Addendum SEE) was prepared by Ms Bartlett on 13 August 2024. This addressed the changes to be made in the amended DA and the application of cl 6.7 of the KLEP. It also referred to the planning history of the site to the extent that it identified that the Spencers’ property had previously had a sunroom which extended into the foreshore area, beyond the foreshore building line, the sunroom was demolished in early 2018, prior to the demolition of the sunroom the Spencers had been granted a DA for alterations at the property but that DA was surrendered. Ms Bartlett’s opinion, as set out in the Addendum SEE, was that the development was consistent with and complied with the objective under cl 6.7(1) of the KLEP, met the exception criteria outlined under cl 6.7(2)(b) and also met the requirements of cl 6.7(3) in that it “will contribute to achieving the objectives for the zone in which the land is located”. In reaching this conclusion she addressed each of the sub-paragraphs in cl 6.7(3). She concluded that:

15. [22]

    It is not disputed that the proposed development would intrude into the foreshore area. So much is apparent from Figure 2 in the Addendum SEE, which depicts the current projection into the foreshore area of the Spencers’ residence and buildings on adjacent properties:

16. [23]

    As is apparent from the plans at [19] above, the amendments to the DA lessened the extent to which the upper deck extended beyond the foreshore building line, and meant that the awning no longer extended beyond the foreshore building line.

17. [24]

    Having reached agreement at the conciliation conference, the Spencers and the Council submitted a Jurisdictional Note to the Commissioner on 14 August 2024. This is, in substance, a joint submission by the parties. This set out that, pursuant to the agreement that had been reached under s 34(3) of the LEC Act, the Spencers sought leave to rely upon the approved plans and documents, including the Addendum SEE. Under the heading “Jurisdictional Matters”, it addressed the issues of consent and notification and (save for the Kiama 2020 Development Control Plan) each of the planning instruments that had been identified as relevant in the 2023 SEE and the JER. As regards cl 6.7(2) of the KLEP, the Jurisdictional Note stated:

18. [25]

    The Jurisdictional Note then identified a number of “exceptional features” of the site, as relevant for the purposes of cl 6.7(2)(b) of the KLEP and stated:

19. [26]

    The Jurisdictional Note said that, in determining the appeal, the Court was required to consider submissions made in respect of the DA and identified that these were in the “Respondent’s bundle of documents” (referring to a bundle of documents filed by the Council on 5 August 2024, which included Mr Leftwich and Mr Joseph’s submissions and Mr Mead’s reports). Reference was also made to Mr Joseph’s written and oral submissions made at the site visit on 12 August 2024. The submission was made that approval of the DA would not result in any contravention of the EPA Act, any environmental planning instrument or the EPA Regulation, such that the Court may exercise its function under s 4.16(1) of the EPA Act and grant consent, and that the decision was one that the Court can make in the proper exercise of its functions.

20. [27]

    The Commissioner was satisfied that the decision agreed between the Council and the Spencers at the conciliation conference was “one that the Court can make in the proper exercise of its functions” as required under s 34(3) of the LEC Act: Commissioner’s decision at [4]. She said that she had formed this state of satisfaction on the basis of 17 matters encompassing (using bare descriptions only): consent; notification and public submissions having been considered; compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; the requirements of ss 2.10(1) and (2), 2.11 and 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021; the requirements of cll 4.3(2) (building height), 4.4(2) (floor space ratio), 6.2 (earthworks), 6.6 (access) and 6.7 (foreshore building line) of the KLEP; the appropriateness of the development to the surrounding coastal and built environment; and the provisions of the Kiama Development Control Plan 2020.

21. [28]

    Given its relevance to these proceedings, below I set out the Commissioner’s reasoning as regards cl 6.7 of the KLEP in full (at [4]):

22. [29]

    The Commissioner then explained that (at [5]-[6]):

Grounds for seeking judicial review and declaratory relief

1. [30]

   In the amended summons Mr Joseph seeks judicial review and declaratory relief on 11 grounds (grounds 5-8, 12 and 17 having been deleted), which are, in substance:

   1. (1)

      the decision authorised development that was not the subject of the DA because the Council did not have power to approve the amended DA and the Commissioner did not, and did not have power to, grant leave to the Spencers to amend the DA (ground 1);

   2. (2)

      the Commissioner’s finding that the DA fell within the exception in cl 6.7(2) of the KLEP was unreasonable, irrational and/or illogical (ground 2);

   3. (3)

      it was legally unreasonable for the Commissioner to accept the reasoning given in the Addendum SEE as to the existence of “exceptional features” for the purposes of the exception in cl 6.7(2), where reasons were neither provided in the Addendum SEE, nor by the Commissioner in her acceptance of there being exceptional features (ground 3);

   4. (4)

      the Commissioner erred by failing to form the requisite state of satisfaction required by cl 6.7(3) (ground 4);

   5. (5)

      the Commissioner made a number of jurisdictional and legal errors as regards the Jurisdictional Note: she misunderstood her function, she wrongly gave consideration to the Jurisdictional Note and the parties’ agreement there set out, she permitted the authors to find a “jurisdictional prerequisite”, she failed to give any or real consideration to conflicts of interest or bias, she accepted the conclusions as akin to her findings and she failed to consider the public interest (ground 9);

   6. (6)

      the Commissioner failed to consider relevant and material evidence of the JER (ground 10);

   7. (7)

      the Commissioner failed to consider relevant planning history, and instead relied on irrelevant planning history in the Addendum SEE and there was a lack of evidence to support the Commissioner’s findings as to planning history (ground 11);

   8. (8)

      the Commissioner erred in her findings as to what could be, or were, “exceptional features” of the site for the purposes of cl 6.7(2)(b) of the KLEP (ground 13(a));

   9. (9)

      the Council failed to inform Mr Joseph of the Council’s change in approach to cl 6.7(2) of the KLEP, which was a denial of procedural fairness and an abuse of process (ground 14);

   10. (10)

       there was a constructive failure by the Commissioner to exercise jurisdiction on account of her acceptance of the parties’ submission as to the lack of jurisdictional impediments and in not considering material which denied the Court’s jurisdiction to make the decision (ground 15); and

   11. (11)

       the Commissioner erred by failing to consider the relevant matters set out in cl 6.6 of the KLEP, relating to public access to the foreshore (ground 16).

2. [31]

   Section 34(3) of the LEC Act provides:

3. [32]

   Section 34 also provides that:

   1. (1)

      subject to the LEC Act and rules made thereunder, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to s 34(3) has and may exercise the functions of the Court: s 34(7);

   2. (2)

      a Commissioner’s decision under s 34(3) (or subsection (4)(b)) is taken to be the decision of the Court: s 34(8); and

   3. (3)

      evidence of anything said or of any admission made in, or document prepared for the purposes of, in the course of, or as a result of, a conciliation conference is not admissible in evidence in any proceedings before any court, tribunal or body without the parties’ consent: s 34(11), (12).

4. [33]

   As explained by Basten JA (Leeming JA and Preston CJ of LEC agreeing) in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [16], if a decision of the Court could be set aside or declared invalid by this Court, then it is not a decision which the Court could have made in the proper exercise of its functions within the meaning of s 34(3) of the LEC Act. It is thus necessary for a Commissioner to be satisfied that any jurisdictional constraints upon the Court’s decision-making are satisfied before disposing of proceedings in accordance with an agreed decision under s 34(3). This is a statutory reflection of the general law principle that a court must be satisfied that it has jurisdiction: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65] (Basten AJA, Payne and Kirk JJA agreeing); see also Meagher and Leeming JJA in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [10].

5. [34]

   There are a range of matters which may operate as jurisdictional constraints on the Court’s power to make a decision granting consent to a DA (see McMillan at [52]). It is neither necessary nor desirable in this judgment to deal with all such matters. It suffices to recognise that (as both the Spencers and Mr Joseph agree) cl 6.7(2) of the KLEP operates as a jurisdictional constraint upon the power of the Court when exercising the functions of a consent authority under s 39(2) of the LEC Act, such that the Commissioner could not properly have disposed of the proceedings under s 34(3) if she were not satisfied that the agreed decision was one which was not precluded by cl 6.7 of the KLEP. This conclusion necessarily follows from the analysis of Preston CJ of LEC, Leeming JA agreeing, in Al Maha at [79].

6. [35]

   Whilst a Commissioner must satisfy themself that no jurisdictional constraint is exceeded by the making of the agreed decision, the Commissioner is not required to replicate the task of the consent authority under s 4.15 of the EPA Act. A Commissioner is not required to evaluate the relevant matters in s 4.15(1) of the EPA Act. Nor is the Commissioner required to have regard to all material to which the Court would have had regard in exercising the function of the consent authority at a substantive hearing: McMillan at [65] (Basten AJA). Provided that the Commissioner is satisfied that the material before them satisfies any relevant jurisdictional constraint, they need not go further. They are required to consider what decision the Court could have made, not what decision should be made: McMillan at [8] (Kirk JA); see also Al Maha at [217] (Preston CJ of LEC, Leeming JA agreeing). That distinction reflects the role of the Commissioner under s 34(3), as opposed to the very different role of the Court when making dispositive orders following a contested hearing: McMillan at [6] (Kirk JA).

7. [36]

   Where (as here) a jurisdictional constraint arises from the terms of a planning instrument, the relevant factual, evaluative and legal criteria in the planning instrument are not jurisdictional facts that can only be determined authoritatively by the Court: Ross v Lane (2022) 255 LGERA 136; [2022] NSWCA 235 at [102]-[103]; El Khouri v Gemaveld Pty Ltd (2023) 256 LGERA 24; [2023] NSWCA 78 at [53]-[54]. Mr Joseph contended to the contrary, submitting that the reasoning in these cases does not apply in this case as cl 6.7(2)(b) of the KLEP expressly states that development consent cannot be granted if the relevant criteria are not satisfied. That contention should be rejected. The analysis in Ross v Lane and El Khouri is predicated not on the terms of the specific planning instruments in issue in those cases, but on the evaluative nature of the criteria to be applied under the relevant planning instrument, the structure of s 4.15 of the EPA Act and the public inconvenience of exposing development consents to challenge as jurisdictional facts. Further, as Leeming JA said in El Khouri at [70]:

8. [37]

   By way of context, the Court may arrange a conciliation conference “between the parties or their representatives” if proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction: LEC Act, s 34(1). However, under s 34AA(1) and (2), the Court must arrange a conciliation conference between the parties and their representatives with or without their consent where there are proceedings pending in Class 1 of the Court’s jurisdiction relating to appeals, objections and applications under section 8.7 or 8.9 of the EPA Act:

9. [38]

   This suggests that Parliament intended that an attempt should be made to resolve all such proceedings by conciliation having regard to the nature and character of the proceedings and the desirability of such proceedings being resolved efficiently and cost-effectively. I would thus infer that the overarching purpose of mandatory conciliation conferences, such as that required and conducted in this case, is to reduce the cost and burden of litigation arising from planning disputes involving private landowners and relatively small-scale developments and, to that end, to encourage parties to resolve their disputes consensually and without undue cost. That inference is supported by the second reading speech of the Hon Michael Veitch, Parliamentary Secretary in the Legislative Council introducing the Planning Appeals Legislation Amendment Bill 2010 (which introduced s 34AA into the LEC Act):

10. [39]

    Mr Veitch later described the scheme introduced by s 34AA as one which was “designed to deliver demonstrable time and cost savings for both parties and the court” and as one which “will make the court more accessible to homeowners and applicants for minor development, thereby making the planning system more equitable”.

11. [40]

    Section 34 must be interpreted in this legislative context. The legislative context also includes s 38(1) and (2) of the LEC Act which provide:

12. [41]

    The procedural context in which a decision is to be made under s 34(3) of the LEC Act is also significant, as explained by Basten JA in McMillan at [63]. As his Honour there identified, the Commissioner will not at that stage of the proceedings have undertaken an assessment of the evidence. Indeed, it may not have been tendered. Witnesses will not have been called or cross-examined. The parties will not have addressed the Court as to how evidence should be understood. All of these matters stand against the Commissioner being required under s 34(3) of the LEC Act to carry out an evaluative exercise taking into account matters which may be relevant at a substantive hearing of Class 1 proceedings.

13. [42]

    Moreover, objectors such as Mr Joseph have no right to appeal against a grant of consent and are not (unless joined by order of the Court) parties to an appeal against a refusal of development consent, unless the appeal relates to designated development: EPA Act, s 8.8. By virtue of the statutory scheme under the EPA Act and the LEC Act, objectors have an entitlement to be heard on an application for a DA and their submissions will be before the Court considering an appeal in Class 1 proceedings, but (absent a successful joinder application) they are not given further opportunities to be heard or to participate in the proceedings. As non-parties, they have no entitlement to be involved in a conciliation conference although (consistent with what happened in this case) the Conciliation Conference Policy of the Court provides for non-parties to make submissions at the site visit at the outset of a conciliation conference.

14. [43]

    Having regard to this, Parliament should be taken deliberately to have chosen, in s 34(1) of the LEC Act, to provide that conciliation conferences are to take place between parties (or their representatives) and not to include objectors. I would infer that Parliament intended that it would be a matter for the parties whether, and to what extent, they made concessions or altered positions previously taken in the proceedings in order to reach the agreement that s 34 is designed to encourage. It necessarily follows that Parliament did not intend objectors to have any say in whether the terms of a decision agreed between the parties would be acceptable to them or whether the proceedings should be resolved in accordance with the decision under s 34(3) of the LEC Act.

15. [44]

    It would be antithetical to the purpose and context of ss 34 and 34AA, discussed above, if a Commissioner were required to interrogate the Court file, search for material which might bear on jurisdictional constraints, or evaluate competing contentions or opinions in the material filed with the Court before disposing of the proceedings in accordance with her obligation under s 34(3) of the LEC Act.

16. [45]

    Further, whilst there may be cases where a Commissioner chooses to rely upon additional material, in the vast majority of cases it would be expected that a Commissioner would exercise their function under s 34(3) of the LEC Act in reliance upon material provided by the parties for that purpose. Provided there is nothing on the face of that material that undermines its reliability or otherwise suggests that it insufficient for this purpose, there is no error in a Commissioner reaching the requisite state of satisfaction under s 34(3) in reliance upon that material. Mr Joseph’s contention that the Commissioner here should have had regard to all relevant material that was “available to her” in the sense of it being provided to the Court for the purpose of the proceedings, if accepted, would effectively require the Commissioner to undertake the evaluative task required in a hearing but without there being any opportunity to test, or hear submissions on, the evidence. That could not have been Parliament’s intention in introducing ss 34 and 34AA into the LEC Act.

17. [46]

    Similarly, contrary to Mr Joseph’s contention, s 39(4) of the LEC Act does not oblige the Commissioner to consider all of the material filed with the Court insofar as it impacts on jurisdictional constraints upon the Court’s decision-making, or the public interest. Section 39(4) provides:

18. [47]

    Section 39(4) does not have direct application to a Commissioner exercising functions under s 34(3) of the LEC Act, albeit that it may inform the Commissioner’s state of satisfaction as to whether the decision agreed between the parties is one that the Court could have made in the proper exercise of its functions. So understood, s 39(4) does not impose an obligation upon the Commissioner to undertake an evaluation of the public interest, nor does it impose an obligation on the Commissioner to seek to inform themselves broadly as to potentially relevant circumstances of the case.

19. [48]

    In grounds 2, 3, 4, 9, 10, 11, 13(a) and 16 Mr Joseph contends that this Court should infer that the Commissioner did not consider any matters that are not reflected in her reasons for decision. The availability of such an inference depends, in the first instance, upon the ambit of any duty on the Commissioner to give reasons.

20. [49]

    Section 34(3) does not impose any express obligation upon a Commissioner to give reasons when they exercise power under s 34(3). By contrast, if a Commissioner disposes of proceedings, under s 34(4)(b) (which applies where the parties have not reached agreement but proceedings are disposed of by a Commissioner at a hearing with the parties’ consent on the basis of what occurred at the conciliation conference), a Commissioner is required to give written or oral reasons: LEC Act, s 34(5). The negative inference which might be drawn from this, is that no reasons need be given when the Commissioner disposes of proceedings under s 34(3), noting the less demanding requirement there imposed: Al Maha at [68] (Preston CJ of LEC). Further, the confidentiality that normally would attach to things said and done in a conciliation conference tends against there being an obligation upon the Commissioner to give reasons under s 34(3): Al Maha at [27] (Basten JA). However, as held by Basten JA in Al Maha at [29]-[30] (see also Preston CJ of LEC at [201]-[202]):

21. [50]

    Five things should be noted. First, the obligation is to identify the criteria to be fulfilled in order that a jurisdictional constraint is satisfied. Second, the obligation is to indicate how the Commissioner satisfied themselves of those matters. That may be done indirectly, for example, by indicating what document or documents they considered. Third, such indication need only be brief. Fourth, consistent with the authorities discussed above, the obligation to give reasons must reflect the limited nature of the Commissioner’s role under s 34(3): Al Maha at [33] (Basten JA). Fifth, the reasons required will depend on the jurisdictional constraint in issue: Al Maha at [202] (Preston CJ of LEC).

22. [51]

    The analysis set out above informs consideration of the grounds relied upon by Mr Joseph. It discloses why his contentions must be rejected.

Ground 1 – the Council had no power to amend the DA

1. [52]

   The essence of Mr Joseph’s complaint in ground 1 is that the Council had no power to approve an amendment to the DA after it refused consent on 8 February 2024 when the DA was determined because from that point on it was functus officio. Thus, he contended, the Commissioner’s decision went beyond the power in s 34(3) of the LEC Act because consent could not have been given to the amended DA in circumstances in which the Council did not have power to approve an application to amend the DA. He also contended that the Commissioner did not say that she was granting leave to amend the DA, or was herself amending the DA, and in those circumstances, this Court should not find that she approved the amended DA.

2. [53]

   Resolution of this issue turns primarily upon the proper construction of ss 37 and 38 of the EPA Regulation in the context of the EPA Act as a whole. As relevant to ground 1, ss 37 and 38 provide:

3. [54]

   Several observations should be made about these provisions.

4. [55]

   First, as Mr Joseph identifies, s 37 of the EPA Regulation confers an entitlement upon an applicant to apply to a consent authority for amendment to a DA “at any time before a development application is determined”. Under s 4.16 of the EPA Act, a DA is determined when the consent authority either grants or refuses consent to the DA. Thus, the DA here was determined when it was refused by the Council. However, where an applicant appeals to the Court against such a determination, “for the purposes of hearing and disposing of an appeal under this Division, [the Court has] all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal”: s 8.14(1) of the EPA Act; see also s 39(2) of the LEC Act. The decision of the Court on an appeal is then taken to be the final decision of the consent authority and is to be given effect to accordingly: s 8.14(2) of the EPA Act. Thus, a decision of the Court either to grant or refuse consent to a DA, exercising the function of the consent authority under s 4.16 of the EPA Act, is also a determination of the DA. It follows that, where an appeal is brought against a decision to refuse or grant consent to a DA, the applicant for a DA retains an entitlement under s 37 of the EPA Regulation to apply to the consent authority to amend the DA.

5. [56]

   Second, this construction of ss 37 and 38 of the EPA Regulation is supported by the terms of ss 37(7) and 38(4). These subsections make it plain that an amendment application under s 37 may be considered and determined by a consent authority at a time when the “development application is subject to proceedings in the Court”.

6. [57]

   Third, in Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 at [8], Jagot J observed that “a broad approach to both the scope and application of cl 55 [the provision enabling amendments to a DA under EPA Regulation 2000 (NSW) (Former EPA Regulation)] is appropriate”. Her Honour also said at [9] that the “availability of the power is to be determined having regard to the beneficial and facultative nature of the provision” and that it ought to be given “the widest interpretation which its language will permit” (quoting Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 at 260–261 per McHugh J, referring to Holmes and Another v Permanent Trustee Company of New South Wales Limited and Others (1932) 47 CLR 113 at 119 per Rich J). Given their similar role, ss 37 and 38 of the EPA Regulation should also be construed as broadly as their language permits.

7. [58]

   Fourth, the consent authority as regards the development the subject of the DA is the Council: EPA Act, s 4.5(d). That remains the case notwithstanding that a DA has been refused and an appeal instigated under s 8.7(1) of the EPA Act.

8. [59]

   These matters strongly support the conclusion that the Council retained the power under s 38 of the EPA Regulation to approve an amendment application notwithstanding that the Spencers had appealed against the Council’s refusal to consent to the DA.

9. [60]

   As against this, Mr Joseph contends that the powers of the consent authority expire upon the making of a determination under s 4.16 of the EPA Act. In this regard, he relies upon the language of s 39(2) of the LEC Act and s 8.14(1) of the EPA Act, in particular, that those provisions confer on the Court the functions and discretions that the decision-maker “had”. This, he submits, supports a conclusion that a consent authority lost any power to amend a DA after refusing consent.

10. [61]

    However, as Kirby P explained in McDougall v Warringah Shire Council (1993) 30 NSWLR 258 at 263-264 (see also Pain J in Scarf v Shoalhaven City Council [2021] NSWLEC 128 at [52], approving the respondent’s submission in that case at [38]-[39]), the language and apparent purpose of s 39(2) of the LEC Act make it clear that that the functions and discretions available to the Court are those which the decision-maker had in respect of the decision the subject of the appeal and are not those strictly necessary to the approval. So understood, s 39(2) does not preclude a consent authority retaining functions and discretions in respect of a DA where its decision is under appeal.

11. [62]

    Moreover, contrary to Mr Joseph’s contention, the approved plans and documents contained all of the details required by s 37(6) of the EPA Regulation.

12. [63]

    As indicated above at [52], Mr Joseph also contends that the Council was functus officio, having refused consent to the DA. Whether or not the Council retained the power to approve an amendment application under s 38 of the EPA Regulation turns upon the proper construction of that provision. For the reasons set out above, properly construed, the power under s 38 remained available to the Council notwithstanding its decision to refuse consent to the application.

13. [64]

    Mr Joseph places some reliance in his submissions upon the decision of Hemmings J in Somerville v Dalby (1990) 69 LGRA 422 at 430-431. However, in the passage relied upon, his Honour held that a consent authority had no power to amend the terms and conditions of a development consent after it is granted in the absence of the applicant seeking to modify the consent (at 431). His Honour was not considering whether a consent authority had power to amend a DA, with the agreement of the applicant for a DA, when proceedings relating to that DA were in the Court.

14. [65]

    Mr Joseph contended that the power to approve an amendment whilst an appeal was before the Court was limited to a minor or insubstantial amendment. Whilst he said that this language derived from the words used in the EPA Act, that is not the case. To the extent that Mr Joseph relied, in this regard, upon s 8.15(3) of the EPA Act, that provision relates only to the costs of an amendment to a DA which is allowed by the Court and, as the Council submitted, is predicated upon the possibility that the Court might allow something more than a minor amendment. It may be that Mr Joseph’s contention was sourced in the dissenting judgment of Basten JA, as regards the power of the Court to agree to an amendment to a DA under the Former EPA Regulation in Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 (see at [72]-[73] below).

15. [66]

    To the extent that Mr Joseph sought to buttress his contention by reference to notification requirements incumbent on the Council, s 2.22 of the EPA Act provides that the mandatory requirements for community participation by planning authorities with respect to the exercise of relevant planning functions are set out in Part 1 of Schedule 1. Clause 7(1)(a) of Schedule 1 provides that the relevant period of public exhibition for an application for development consent is as set out in the relevant community participation plan (if a period is there specified). The Kiama Council Community Participation Plan 2019 provides that amendments to undetermined DAs will be publicly exhibited where, in the opinion of Council, they have effect on the enjoyment of adjoining land but:

16. [67]

    Given that the changes to the DA diminished the impact of the proposal on adjoining land and the surrounding area, there was nothing in the Kiama Council Community Participation Plan which required public exhibition of an application to amend the DA.

17. [68]

    It follows that Mr Joseph’s contention, that the Council had no power to approve an application by the Spencers to amend the DA, should be rejected.

18. [69]

    In any event, here the Commissioner, in the orders she made, effectively approved the Spencers’ application to amend the DA to the extent that such approval was required. As observed in Al Maha, an exercise of power may be inferred from the terms of the orders made: at [269] (Preston CJ of LEC). The decision agreed between the parties was to uphold the appeal and make orders granting consent to the amended DA. The agreed terms of the decision included that the Court noted that the Council had agreed, under s 37(1) of the EPA Regulation, to the Spencers amending the DA in accordance with the approved plans and documents. The approved plans and documents reflected the terms of the DA as amended. Condition 1 of the conditions imposed on the DA, to which the Commissioner ordered that consent be granted, reflected the terms of the amended DA. In these circumstances, it would be inferred that, if approval was required, the Commissioner approved the application by the Spencers to amend the DA.

19. [70]

    Of course, that decision could only be made if it was a decision that the Court could have made in the proper exercise of its functions: LEC Act, s 34(3). The power to approve an application to amend a DA under s 38 of the EPA Regulation is one which the Council had, and thus falls within the ambit of s 39(2) of the LEC Act and s 8.14(1) of the EPA Act. The Court also has a broad power of amendment pursuant to s 68(1) of the LEC Act:

20. [71]

    This is in addition to the general powers of amendment conferred by ss 64 and 65 of the Civil Procedure Act 2005 (NSW) and under UCPR, Pt 19: Bunnings at [36] (Basten JA, dissenting as to the result). That power extends to the amendment of “any document in the proceedings” and to the grant of leave to a party to amend any such document: s 64(1). In these circumstances, a decision approving an application to amend the DA was one which the Court could make for the purposes of s 34(3) of the LEC Act. Contrary to Mr Joseph’s submission, for the reasons I have already given, the decision was not contrary to the public interest in ensuring that notification requirements under the EPA Act “are effectively working” (even if this could be a constraint on the power of the Commissioner under s 34(3) of the LEC Act).

21. [72]

    This conclusion is consistent with the decision of this Court in Bunnings. In that case Preston CJ of LEC (Beazley P agreeing) held at [151] that in Class 1 proceedings the Court could approve an amendment to a DA as the Court’s functions under s 8.14(1) of the EPA Act and s 39(2) of the LEC Act included the function of agreeing to the amendment or variation of a development application (then under cl 55 of the Former EPA Regulation). There is no reason why a different approach should be taken as regards ss 37 and 38 of the EPA Regulation. Further, Basten JA (dissenting as to the Court’s power under s 55 of the Former EPA Regulation) in Bunnings held at [61] that:

22. [73]

    His Honour held that such power would have to be limited, either to DAs which do not differ “in any material respect” from that considered by the council or to a DA which is “substantially the same” as that considered by the council: at [62]. Given the nature of the amendments made by the amended DA, they would fall within the ambit of what his Honour considered permissible.

23. [74]

    Thus, even if the Council had not had power to approve the amendment of the DA, the Commissioner gave the necessary approval.

24. [75]

    It follows that ground 1 should be dismissed.

Ground 2 – the Commissioner’s finding as to cl 6.7(2)(b) of the KLEP was legally unreasonable

1. [76]

   The issue of substance underlying ground 2 is whether the state of satisfaction which the Commissioner undoubtedly reached as regards the matters in cl 6.7(2) of the KLEP was tainted by legal unreasonableness, as understood in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [91] (Gageler J).

2. [77]

   Viewed together, the 2023 SEE and Addendum SEE, both of which were before the Commissioner, identified and reviewed what were described as the “relevant planning controls”. On their face, these coherently analysed the relevant planning controls, addressing the various criteria as a matter of substance, and determined that they were satisfied (once the Addendum SEE is taken into account). There was nothing on the face of those documents to suggest that they did not address the relevant planning controls in good faith, on the basis of relevant material and drawing logical conclusions or could not otherwise be relied upon in support of a conclusion that any jurisdictional constraint arising by reason of a planning instrument was satisfied. Consistent with the principles discussed above, the Commissioner was not obliged to test the opinions set out in the 2023 SEE or Addendum SEE by reference to other expert evidence (including the JER and the reports of Mr Mead) or the SOFAC filed in the LEC proceedings. To the contrary, the Commissioner was entitled to rely upon the conclusions in the SEE and Addendum SEE to the extent the planning controls were jurisdictional constraints upon the exercise of the Court’s power to consent to the DA. Mr Joseph’s contentions to the contrary should be rejected.

3. [78]

   As regards cl 6.7(2) of the KLEP, its requirements were addressed in detail in the Addendum SEE, and Ms Bartlett concluded, on the basis of her assessment, that the development the subject of the DA as amended met the exceptions provided under cl 6.7(2)(b), explaining why she reached that conclusion. Having regard to the Addendum SEE, there was nothing legally unreasonable in the Commissioner being satisfied that the development fell within the exception in cl 6.7(2)(b) of the KLEP.

4. [79]

   Contrary to Mr Joseph’s contention, it matters not that the authors of the 2023 SEE and Addendum SEE had not agreed to be bound by the expert witness code of conduct in the Court. The rules of evidence did not apply as regards the Commissioner’s exercise of power under s 34(3) of the LEC Act and she was not conducting a hearing.

5. [80]

   To the extent that Mr Joseph contends that the Commissioner’s decision was legally unreasonable because the development was not the “erection of a building” so as to fall within the ambit of cl 6.7(2)(b), that contention should be rejected. “Building” is defined inclusively in s 1.4 of the EPA Act:

6. [81]

   The phrase “erection of a building” is also defined inclusively in the EPA Act:

7. [82]

   Given that the KLEP was made pursuant to the EPA Act, unless there is some indication to the contrary, words used in the KLEP that are defined in the EPA Act should be given that defined meaning. That is consistent with the note to the Dictionary in the KLEP which explains that:

8. [83]

   Whilst this note is not part of the instrument: Interpretation Act 1987 (NSW), s 35(2)(c), it can be taken into account when construing the KLEP: Interpretation Act, s 34(2)(a).

9. [84]

   The proposed new ground floor, lower decks and upstairs terrace comfortably fall within these (inclusive) definitions. They are structures or parts of a structure. They involve the making of alterations to the existing building. The planter box is also a building as it is a structure. They were all “erected” in the ordinary sense that they were constructed or built. The Commissioner’s finding that this was the erection of a building in the foreshore area was not legally unreasonable. Thus, even if the Commissioner had been bound to consider this legal definition notwithstanding the terms of the 2023 SEE and Addendum SEE (and this is doubtful to say the least), Mr Joseph’s challenge to her conclusion should be rejected.

10. [85]

    The Commissioner did not, in her decision, make any reference to the definitions at [80]-[81] above. Contrary to Mr Joseph’s contention, however, there was no reason for her to do so when setting out her satisfaction that any jurisdictional constraints arising from relevant planning controls did not preclude the Court making the decision agreed between the Spencers and the Council. The Commissioner’s reasons given for reaching the requisite state of satisfaction under s 34(3) of the LEC Act leave no room for doubt that the Commissioner was satisfied that cl 6.7(2)(b) of the KLEP applied. That could only be so if she was satisfied that the proposed development relevantly involved the erection of a building for the purposes of cl 6.7(2)(b) of the KLEP. She was not required in her decision to detail all the matters that bore on the question whether cl 6.7(2)(b) of the KLEP was satisfied. For the same reason, contrary to Mr Joseph’s contention in ground 13(a), she was not required in her decision to explain what constitutes an exceptional feature of the site for the purposes of cl 6.7(2)(b) of the KLEP. Rather, she was required to set out the basis of her satisfaction, and there is no doubt that here she did so.

11. [86]

    Further, Mr Joseph’s contention in ground 13(a), that “exceptional features of the site” in cl 6.7(2)(b) of the KLEP must be limited to topographical features of the site, should be rejected. There is no basis to give cl 6.7(2)(b) such a constrained construction. This is particularly so given the aims of the KLEP, as set out in cl 1.2. These include: the protection and enhancement of the coastal and rural character of Kiama’s neighbourhoods and the characteristic scenic landscapes; catering for housing choice; promoting and co-ordinating the orderly and economic use and development of land; maintaining, protecting and advancing environmentally sensitive land for its biodiversity and ecological values; and protecting Kiama’s cultural heritage. None of those matters supports a construction of cl 6.7(2)(b) whereby exceptional features of the site making development appropriate must be limited to topographical features.

12. [87]

    Clause 6.6 of the KLEP also stands against Mr Joseph’s contention in this regard. This sets out a list of matters that must be considered when deciding to grant consent for development in the foreshore area, including whether development would encourage “the reinforcing of the foreshore character and respect for existing environmental conditions”. This suggests that site context may be one of the features of the site that may be considered under cl 6.7(2)(b) of the KLEP. Moreover, cl 6.7(2)(b) must be construed in light of the objective of cl 6.7, as set out in cl 6.7(1). That suggests that impact on natural foreshore processes and the significance and amenity of the area could inform what is, or is not, an exceptional feature of the site. The list of matters, in cl 6.7(3), of which a consent authority must be satisfied when granting development consent under cl 6.7(2), also suggests that a broad range of matters could comprise exceptional features of the site, making it appropriate to grant development consent.

13. [88]

    Contrary to Mr Joseph’s contention in ground 13(a), these could properly include the planning history of the site, the location of the existing building on the site relative to the foreshore building line, characteristics of current buildings on the site and the site’s context, in particular, that development at surrounding properties extends into the foreshore area. The latter would bear on the extent to which, if at all, development would affect the significance and amenity of the area and thus be consistent with the objective of cl 6.7, which supports my conclusion that it could properly be taken into account as an exceptional feature of the site.

14. [89]

    Mr Joseph also contended that each matter relied upon by the Commissioner must itself be an “exceptional feature of the site” for the proposed development to fall within the ambit of cl 6.7(2)(b) of the KLEP. In light of the matters I have already considered, I do not agree. What is required by the KLEP is that the features of the site are “exceptional” and “make it appropriate” for development consent to be granted for development on land in the foreshore area. There is no reason to exclude the application of cl 6.7(2)(b) simply because it cannot be shown that each of the features identified as supporting a finding that cl 6.7(2)(b) is satisfied is exceptional. There is nothing in the KLEP or cl 6.7 that suggests that the operation of cl 6.7(2)(b) should be limited by an artificial constraint such as that contended by Mr Joseph.

15. [90]

    Mr Joseph also contended that the Commissioner’s reasoning in explaining the exceptional features of the site for the purposes of cl 6.7(2)(b) of the KLEP was legally unreasonable. In each respect, his contention relied upon material (such as photographs or aspects of the planning history of the site) against which he contended the Commissioner should have evaluated the conclusions in the Addendum SEE. It is unnecessary to examine the detail of these contentions as they ignore the nature of the Commissioner’s function under s 34(3) of the LEC Act as set out at [33]-[50] above. The Commissioner was not required to evaluate the conclusions in the Addendum SEE against other material relied upon by the parties or by Mr Joseph. It necessarily follows that her decision cannot be characterised as legally unreasonable by reference to such material, at least in a case such as this where there is nothing on the face of the 2023 SEE or Addendum SEE, or in the Jurisdictional Note or DA as amended, which would make it unreasonable for the Commissioner to rely upon the 2023 SEE and Addendum SEE in reaching the necessary state of satisfaction.

16. [91]

    Finally, Mr Joseph’s contention that neither the Commissioner’s decision nor the Addendum SEE included “reasoning” in support of its conclusion as regards cl 6.7(2)(b) of the KLEP must be rejected. Starting with the Addendum SEE, this addressed the requirements of cl 6.7, the site context (including development on other blocks in the foreshore area and on adjacent land), privacy impacts of the proposed development and the relevant site history. It also assessed the proposed development in the DA as amended by reference to each sub-clause of cl 6.7, explaining why the objective in cl 6.7(1) was achieved, what matters were relied upon as exceptional features of the site, why each of the sub-paragraphs of cl 6.7(3) was complied with, and concluded that the development fell within the ambit of cl 6.7(2)(b). Mr Joseph’s contention that the Addendum SEE lacked reasoning to support its conclusion should be rejected.

17. [92]

    Similarly, there was no legal unreasonableness in the Commissioner accepting “on the basis of the reasoning in the [Addendum SEE], that the proposed development falls within the exception in subcl 6.7(2)(b)”. In any event, as is clear from her decision at [4(16)], the Commissioner identified the matters which, for her, supported this conclusion, disclosing that she considered for herself whether the matters identified in the Addendum SEE were sufficient that the development in the DA as amended fell within the exception in cl 6.7(2)(b) of the KLEP.

18. [93]

    It follows that ground 2 should be dismissed.

Ground 3 – the Commissioner gave inadequate reasons for her conclusion as to cl 6.7(2)(b) of the KLEP

1. [94]

   In ground 3 Mr Joseph contends that there was an absence of lawful reasons or reasoning concerning the Commissioner’s findings of jurisdictional fact as regards cl 6.7(2)(b) of the KLEP and that this is a legal error. He contends that the reasons given by the Commissioner needed to, but did not, suffice to enable this Court to reach conclusions about the matters in cl 6.7(2)(b) of the KLEP, which he contends are jurisdictional facts, including having regard to what he describes as “new” evidence. He also contends that the Commissioner’s reasons are deficient to the extent that, in her decision at [4(16)], she indicates that she placed reliance upon the parties’ agreement.

2. [95]

   I have already rejected Mr Joseph’s contention of unreasonableness.

3. [96]

   In light of the analysis at [36] above, Mr Joseph’s contention that the requirements of cl 6.7(2)(b) of the KLEP are jurisdictional facts, of which this Court must be satisfied, should be rejected.

4. [97]

   Consistent with the principles discussed at [48]-[50] above, Mr Joseph’s contention as to the adequacy of the Commissioner’s reasons should also be rejected. The Commissioner identified the planning controls which needed to be satisfied, including cl 6.7 of the KLEP, explained how she satisfied herself of those matters, probably more fulsomely than was required, and set out her satisfaction that the development fell within the exception at cl 6.7(2)(b) of the KLEP, identifying those matters which made the works appropriate (and, by implication, those matters that she found to constitute exceptional features of the site). Nothing more was required.

5. [98]

   It follows that ground 3 should be dismissed.

Ground 4 – failure to form the requisite state of satisfaction under cl 6.7(3) of the KLEP

1. [99]

   Mr Joseph contends that this Court should infer that the Commissioner did not reach the state of satisfaction required by cl 6.7(3) of the KLEP as she did not refer to that sub-clause in her decision. He submits that there was a “statutory lacuna” in the material before the Commissioner as regards cl 6.7(3) of the KLEP, and that the requisite opinion could only be reached after some, “even if short”, review or evaluation of relevant material. To the extent that Mr Joseph contends that cl 6.7(3) is a jurisdictional fact about which this Court must be satisfied, for the reasons already given, that contention must also be rejected.

2. [100]

   Here, unlike the position in Al Maha where the Commissioner’s reasons failed to identify any jurisdictional constraints at all, I would infer that the Commissioner considered and was satisfied as to the matters in cl 6.7(3) of the KLEP for two reasons.

3. [101]

   First, the provision in cl 6.7 of the KLEP which actually precludes the grant of consent in the given circumstances is cl 6.7(2). Clause 6.7(1) sets out the objective of cl 6.7 and cl 6.7(3) provides that the consent authority cannot grant consent “under subclause (2)” unless satisfied of the matters itemised. Having regard to this, the Commissioner’s acceptance that the proposed development falls within the exception in cl 6.7(2)(b): Commissioner’s decision at [4(16)], satisfaction that the decision is one that the Court could make in the exercise of its functions under s 34(3) of the LEC Act: at [4] and [5], and statement that she was not aware of any jurisdictional impediment to the making of the orders she made, give rise to a clear inference that she was satisfied of the matters in cl 6.7(3) of the KLEP. Were that not the case, the proposed development would not have been one to which consent could be granted under cl 6.7(2)(b).

4. [102]

   Second, and in any event, the Commissioner explained that she accepted that the proposed development falls within the exception at cl 6.7(2)(b) of the KLEP on the basis of the reasoning in the Addendum SEE, which included consideration of each matter listed in cl 6.7(3) of the KLEP. That gives rise to an inference that those matters were considered by the Commissioner when reaching her state of satisfaction as required under s 34(3) of the LEC Act.

5. [103]

   For completeness, with regard to the passage of the joint submission of the parties in the Jurisdictional Note quoted above at [25], whilst the reference to the Respondent rather than to the Commissioner is curious, in substance, the agreed position before the Commissioner was that consent could be granted under cl 6.7(2)(b) having regard to the matters in cl 6.7(3) of the KLEP. Given that the Commissioner refers to and, it would be inferred, read the Jurisdictional Note, this is a further reason to infer that she turned her mind to cl 6.7(3) when accepting that the development fell within the ambit of cl 6.7(2)(b) of the KLEP.

6. [104]

   It follows that ground 4 should be dismissed.

Ground 9 – the Commissioner misunderstood her function in considering the Jurisdictional Note

1. [105]

   In essence, Mr Joseph advanced four contentions in ground 9. First, that the Commissioner relied upon the conclusion in the Jurisdictional Note rather than considering for herself whether the agreed decision was one that the Court could have made in the proper exercise of its functions. Second, that the Commissioner failed to appreciate that the authors of the note, being the parties or their representatives, had an interest in the Court making orders under s 34(3) reflecting the terms of the agreed decision. Third, that in taking the Jurisdictional Note into account the Commissioner made a decision reflecting the interests of the parties and not the public interest. Fourth, that the Commissioner, relying upon the Jurisdictional Note, assumed that real consideration had been given to the submissions of objectors rather than considering these for herself.

2. [106]

   None of these contentions should be accepted.

3. [107]

   As to the first and second matters, the Commissioner expressed her satisfaction that the decision was one that the Court could make in the proper exercise of its functions in her decision at [4] and [5]. She also, at [4], considered matters which had been raised in the 2023 SEE and Addendum SEE as potential jurisdictional constraints. There is no basis to infer that she reached her state of satisfaction merely by deferring to the submissions made in the Jurisdictional Note. Moreover, as is clear on its face, the Jurisdictional Note is really a joint submission of the parties as to jurisdiction. As such, it is readily apparent that it reflects the parties’ joint position. The Commissioner would have been well aware of that.

4. [108]

   As to the third matter, I have already explained at [46] to [47] above, that the Commissioner was not required to evaluate the public interest when exercising her function under s 34(3) of the LEC Act.

5. [109]

   As to the fourth matter, the Commissioner said in her decision at [4(2)]:

6. [110]

   As is apparent, the Commissioner took the objections into consideration and was satisfied that they had been considered either by the amendment or by the proposed conditions. Contrary to Mr Joseph’s contention, there is no reason to infer that she reached this state of satisfaction solely on the basis of the parties’ submission in the Jurisdictional Note. This is particularly so given that the submission in the Jurisdictional Note was that “the Court is required to consider submissions made”, directing the Commissioner to where in the Respondent’s bundle of documents objectors’ submissions could be found, and reiterating that Mr Joseph had made oral and written submissions at the site visit at the start of the conciliation conference.

7. [111]

   It follows that ground 9 should be dismissed.

Ground 10 – failure to consider the JER and Joint Expert Report Policy

1. [112]

   Mr Joseph’s broad contention under ground 10 is that the Commissioner failed to refer to or consider the material findings in the JER and the Court’s Joint Expert Report Policy. The short answer to this ground is that, consistent with the principles discussed at [33]-[50] above, there was no requirement upon the Commissioner to reach an evaluative conclusion having regard to all of the material before her. Her role was limited to satisfying herself of the matters in s 34(3) of the LEC Act. Here, as regards planning controls, she was able to do this by reference to the 2023 SEE and the Addendum SEE considered in the context of the submissions set out in the Jurisdictional Note.

2. [113]

   It follows that ground 10 should be dismissed.

Ground 11 – failure to consider relevant matters and consideration of irrelevant matters

1. [114]

   Mr Joseph contends, in ground 11, that, in making her decision, the Commissioner failed to identify relevant planning history and relied instead on what he characterises as irrelevant planning history, as set out in the Addendum SEE.

2. [115]

   Again, the short answer to this contention is that, consistent with the principles discussed at [33]-[50] above, the Commissioner was not required to evaluate the matters set out in the Addendum SEE against other aspects of the planning history of the site. Given this, aspects of the planning history of the site, as relied upon by Mr Joseph in support of ground 11, were not mandatory relevant considerations for the Commissioner to take into account in the sense identified as giving rise to jurisdictional error in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-45 (Mason J); [1986] HCA 40. Still less were the aspects of the planning history of the site relied upon in the Addendum SEE prohibited considerations.

3. [116]

   In his oral submissions Mr Joseph framed this ground as one relying upon legal unreasonableness. However, consistent with the principles discussed at [33]-[50] above, the Commissioner’s decision, relying as it did on the 2023 SEE and Addendum SEE, was not legally unreasonable. The availability of material indicating that the Council had refused previous DAs sought by the Spencers at the site, and the reasons given by the Council for those decisions, do not make the decision agreed between the parties legally unreasonable.

4. [117]

   Mr Joseph also contends in ground 11 that the 2023 SEE was an irrelevant consideration in the Commissioner’s decision, given that in the 2023 SEE (but not in the subsequent Addendum SEE), it was said that the development proposed in the DA did not comply with cl 6.7(2)(b) of the KLEP and that a variation under cl 4.6 of the KLEP was sought. The premise of this contention is, however, misconceived. Whilst the Addendum SEE was relied upon by the parties at the conciliation conference, and (as set out above) the DA was amended as a result of (or during) that process, that did not render the 2023 SEE irrelevant. To the extent that the development remained as it had originally been proposed, the 2023 SEE remained relevant albeit that its analysis was overtaken by that in the Addendum SEE as regards cl 6.7(2)(b) of the KLEP.

5. [118]

   It follows that ground 11 should be dismissed.

Ground 13(a) – legal and factual errors as regards cl 6.7(2)(b) of the KLEP

1. [119]

   In ground 13(a) Mr Joseph raises a number of matters which he contends were legal or factual errors in the Commissioner’s analysis of cl 6.7(2)(b) of the KLEP. The substance of these contentions has been considered, and rejected, in my consideration of ground 2 at [76]-[93] above.

2. [120]

   In ground 13(a) Mr Joseph also challenges the Commissioner’s finding at [4(16)(ii)] of her decision, that the existence of the “kink” in the foreshore building line (apparent from the plans and images at [18] and [22] above), minimised the extent to which alterations and additions could be carried out on the site and that the kink minimised the extent to which any incursion into the foreshore area by a balcony affected the views from neighbouring properties. Mr Joseph contends that this is a legally unreasonable finding which is not logically based upon the available evidence. That contention should be rejected. The Commissioner’s analysis is supported by both the conclusion reached in the Addendum SEE and by Figure 13 in the Addendum SEE which indicates that the proposed development does not adversely impact the view from Mr Joseph’s property as the framing of the Spencers’ proposed balcony is encompassed by the curved awning projecting from the next property along.

3. [121]

   As for other matters raised by Mr Joseph in ground 13(a) (to the extent not dealt with in my consideration of ground 2):

   1. (1)

      The Commissioner was not required to consider the planning controls over the siting of the foreshore building line;

   2. (2)

      the Commissioner was not required to make “findings” at her site visit;

   3. (3)

      the Commissioner was not required to consider expert evidence going to the extent to which buildings at surrounding properties encroached into the foreshore area;

   4. (4)

      the Commissioner did not make any finding that consent to development at surrounding properties was unlawful or as to the justifications for buildings at those properties encroaching into the foreshore area; and

   5. (5)

      the Commissioner was not required to ascertain or consider when consent was granted for the construction of the existing concrete slab at the rear of the Spencers’ premises, which she found to be dilapidated and to detract from the scenic quality of the foreshore area.

4. [122]

   In short, none of the matters raised by Mr Joseph in ground 13(a) establishes that the Commissioner’s decision was legally unreasonable or that she took into account irrelevant considerations or failed to take into account mandatory relevant considerations under s 34(3) of the LEC Act.

5. [123]

   It follows that ground 13(a) should be dismissed.

Ground 14 – procedural fairness and abuse of process

1. [124]

   The essence of Mr Joseph’s contention under ground 14 is that he was denied procedural fairness because he was not informed that the Council had changed its position as regards whether consent should be granted to the DA, that the DA had been amended or that the Spencers’ contention had moved from being one where a variation to the requirements of cl 6.7(2) of the KLEP was being sought under cl 4.6 of the KLEP, to one where it was contended, and accepted by the Council, that cl 6.7(2)(b) of the KLEP was satisfied. He contends that this was also an abuse of process and abuse of power by the Council because “the parties [used] the conciliation conference to … hang out all their information, which should have otherwise been in my possession”. In support of ground 14, Mr Joseph makes six contentions.

2. [125]

   First, he submits that the Council granted its consent knowing, or when it ought to have known, that the exceptional features relied upon in the Addendum SEE and the Jurisdictional Note were untrue and did not comply with the requirements of cl 6.7(2)(b) as asserted in the Council’s SOFAC, the JER, submissions before Robson J and [40] of the judgment of Robson J. This contention is based upon the fact that the Council changed its position during the LEC proceedings. That does not support the inference that Mr Joseph asks the Court to draw.

3. [126]

   Second, he submits that the conciliation conference was conducted in “secrecy” as a cover for the abuse of process. As already explained, the gravamen of his complaint is that the Council altered its position in the conciliation conference and that this was not made known to Mr Joseph so as to enable him to be heard. He places particular reliance, in this regard, upon the reasons of Robson J refusing his application for joinder. The full passage of his Honour’s reasoning (as relevant to Mr Joseph’s contention) is as follows:

4. [127]

   Mr Joseph also says that he was misled as to the conduct of the appeal, in particular because the SOFAC (in which the Council contended that cl 6.7(2)(b) was not satisfied) was never amended. Had he not been so misled, he says he would have made a further application to be joined as a party to the LEC proceedings and would have sought to call evidence from his expert, Mr Mead.

5. [128]

   Having regard to the statutory context of the Commissioner’s decision, as set out above, Mr Joseph’s contention that he was denied procedural fairness on this account should be rejected. The LEC Act provides no entitlement to an objector, who is not a party to the proceedings before the Court, to be heard at a conciliation conference. As was held by Meagher and Leeming JJA in AQC Dartbrook at [12], the fact that an objector who seeks to make submissions on a point which would not otherwise have been raised by the parties does not make the objector a necessary party to the proceedings. Nor is such an objector entitled to be heard at those proceedings. Their Honours observed in AQC Dartbrook at [17], the statutory scheme reflected in s 34(3) of the LEC Act would be subverted if objectors were entitled to become a party for the purpose of objecting to the agreement reached by the parties to the proceedings. The same subversion of the statutory scheme would arise if objectors were entitled, as non-parties, to be heard as to whether or not the Court should make orders reflecting agreement reached under s 34 of the LEC Act.

6. [129]

   To the extent that Mr Joseph relies, in his submissions, upon the judgment of Robson J, as is clear from the passages from his Honour’s judgment set out above, his Honour was clearly well aware of the upcoming, mandatory conciliation conference that would be conducted. There is nothing in his Honour’s judgment to suggest that Mr Joseph had any entitlement to be heard at that conciliation conference beyond his entitlement to make submissions at the site visit at its commencement. In any event, Mr Joseph’s argument in this regard seeks in effect to rely upon him having some legitimate expectation, following his unsuccessful joinder application, that he would be informed of any alteration to the Council’s position on the application, and that he would be entitled to be heard as to this. As Basten JA explained in McMillan at [35], however, the High Court has repeatedly eschewed reliance upon legitimate expectation as an element of procedural fairness: see eg Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [28] (per Kiefel, Bell and Keane JJ) and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [25] (per Gleeson CJ). In any event, Robson J did not suggest that Mr Joseph would have any entitlement to be heard on any change by the Council in its position, noting that it would naturally be expected that both parties might alter their position at a conciliation conference, in seeking to reach a consensual resolution of the dispute.

7. [130]

   Third, he submits that the fact that the Council has filed only a submitting appearance in these proceedings supports his contention of an abuse of process. No inference should, however, be drawn from the position taken by the Council in these proceedings. There is no foundation for Mr Joseph’s contention that this supports his contention of abuse of process.

8. [131]

   Fourth, he says that the Council knew that he was unaware that it changed its position during the conciliation conference as regards cl 6.7 of the KLEP, knew that there were documents before the Court that would “deny consent” and did not draw that to the Commissioner’s attention even though it had advised Mr Joseph that it would rely on this material. This contention should never have been made as there is no evidence that the Council knew of material that precluded the Commissioner making the orders as sought. Further, there was no obligation upon the Council to notify its changed position to Mr Joseph before reaching agreement in the conciliation conference or before the Commissioner made orders for the purpose of s 34(3) of the LEC Act.

9. [132]

   Fifth, Mr Joseph makes various submissions relying upon non-compliance by the Spencers and the Council with timetabling orders in the LEC proceedings. In his written submissions, and in an affidavit he affirmed on 1 April 2025 in respect of a motion advanced by him in these proceedings, but which was before the Court for the purpose of these proceedings, Mr Joseph effectively provides a chronology of the respondents’ “conduct” during the “process” to which his contentions of an abuse of process and denial of procedural fairness relate, which he submits took place from “after the application to appeal was lodged and until the conclusion of the conciliation conference”. He places particular reliance upon the late filing of the JER, the provision of the Addendum SEE during the conciliation conference and the provision of plans showing the southern elevation of the proposed development during the conciliation conference (in circumstances where Mr Joseph had identified this as one of many lacunas in the detail of the plans, in his submissions objecting to the development). None of the matters identified by Mr Joseph supports a finding of abuse of process (or power) or that there was procedural unfairness. He had no entitlement to see updated material provided during the conciliation conference or the JER and there is no basis to infer that the delay in filing the JER was motivated by a desire to preclude it being before the Court for the purpose of Mr Joseph’s application to be joined as a party to the proceedings.

10. [133]

    Sixth, he contends that the Court, as consent authority, was bound to adopt the duties on the Council as regards communication with objectors under the Kiama Community Participation Plan 2019. That contention fails to recognise the distinction between procedures that are appropriate during court proceedings and those adopted by an entity such as the Council when making a determination under s 4.16 of the EPA Act.

11. [134]

    It follows that ground 14 should be dismissed.

Ground 15 – constructive failure to exercise jurisdiction

1. [135]

   In ground 15 Mr Joseph contends that the Commissioner constructively failed to exercise jurisdiction under s 34(3) of the LEC Act because she said, at [6], that:

2. [136]

   Mr Joseph contends that the Commissioner thereby took a passive role, leaving it to the parties to identify jurisdictional constraints on the Court’s power to make the decision agreed between the parties.

3. [137]

   Having regard to the Commissioner’s decision as a whole, this contention should be rejected. The Commissioner plainly had regard to the material before her, including the jurisdictional constraints identified in the 2023 SEE and Addendum SEE, as well as the joint submission of the parties reflected in the Jurisdictional Note. For the reasons I have explained in some detail above, the Commissioner was entitled to reach her state of satisfaction in reliance upon this material (together with the other material she relied upon as identified in her decision). There was no constructive failure to exercise jurisdiction.

4. [138]

   It follows that ground 15 should be dismissed.

Ground 16 – failure to consider cl 6.6 of the KLEP

1. [139]

   Mr Joseph contends that, under cl 6.6 of the KLEP, the consent authority must consider a range of matters. He contends that, in finding that she was satisfied that the works proposed would not detrimentally impact the matters listed in cl 6.6, the Commissioner took into account irrelevant matters. He also contends that her reasoning in this regard was inadequate. He agrees, in his written reply submissions that this does not go to power but relies upon the fact that the provisions of environmental planning instruments must be taken into account by a consent authority under s 4.15(1)(a)(i) of the EPA Act.

2. [140]

   As was found in McMillan at [81]-[82], there is no obligation upon the Commissioner to consider a provision in a planning instrument that does not contain a prohibition on the grant of consent or otherwise constitute a jurisdictional constraint on the granting of consent to a DA. Clause 6.6 of the KLEP falls into that category. Accordingly, the Commissioner was not bound to consider it. In any event, it was considered in the Addendum SEE and the authors concluded that the proposal complied with its requirements. The Commissioner accepted and acted upon the Addendum SEE.

3. [141]

   It follows that ground 16 should be dismissed.

Costs

1. [142]

   Both Mr Joseph and the Spencers agreed that if either of them were wholly unsuccessful, costs should follow the event. Given my conclusions, Mr Joseph must pay the Spencers’ costs.

Conclusion

1. [143]

   In light of my conclusions set out above, the orders I propose are:

   1. (1)

      Amended summons dated 26 June 2025 be dismissed.

   2. (2)

      Applicant to pay the first and second respondents’ costs.

2. [144]

   McHUGH JA: I agree with Stern JA.

3. [145]

   GRIFFITHS AJA: I agree with Stern JA.