278 Palmer St Pty Ltd v The Council of the City of Sydney

Case •

[2020] NSWLEC 165

•

27 November 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: 278 Palmer St Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 165
Hearing dates: 15 July 2020
Date of orders: 27 November 2020
Decision date: 27 November 2020
Jurisdiction:Class 1
Before: Robson J
Decision:

See orders at [119]

Catchwords:

ENVIRONMENT AND PLANNING — Land and Environment Court — Appeal against decision of Commissioner — Whether applicant was denied procedural fairness — Whether Commissioner erred in concluding that further structural engineering detail was required — Whether Commissioner failed to consider relevant matters

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 4.16

Environmental Planning and Assessment Regulation 2000 (NSW) Sch 1, cl 54

Land and Environment Court Act 1979 (NSW) ss 38, 56A

Sydney Development Control Plan 2012 cl 3.10.1

Sydney Local Environmental Plan 2012 cl 5.10

Cases Cited:

278 Palmer St Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1012

Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116

Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102

Greenwood v Warringah Council [2014] NSWCA 205

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118; (2018) 236 LGERA 256

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310

Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105

Category:Principal judgment
Parties: 278 Palmer St Pty Ltd (Appellant)
The Council of the City of Sydney (Respondent)
Representation:

Counsel:
A Pickles SC (Appellant)
Dr S Berveling (Respondent)

Solicitors:
Landerer and Company Lawyers and Advisers (Appellant)
City of Sydney Legal Services (Respondent)
File Number(s): 2020/00030434
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Land and Environment Court of New South Wales
Jurisdiction:
Civil
Citation:

[2020] NSWLEC 1012

Date of Decision:
09 January 2020
Before:
Dickson C
File Number(s):
2018/00351176

Judgment

Nature of appeal and outcome

  1. On 27 September 2017, 278 Palmer St Pty Ltd (‘278 Palmer’) applied for development consent for alterations and additions to an existing warehouse building located at Darlinghurst and within the East Sydney Heritage Conservation Area (‘HCA’) under the Sydney Local Environmental Plan 2012 (‘LEP’).

  2. The Council of the City of Sydney (‘Council’) refused development consent on 7 November 2018 and 278 Palmer filed a Class 1 Application in this Court appealing against Council’s refusal of the development application on 15 November 2018. The appeal was heard by Commissioner Dickson on 6 and 7 November 2019 and, on 9 January 2019, the Commissioner delivered judgment dismissing the appeal: 278 Palmer St Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1012 (‘judgment’).

  3. 278 Palmer now appeals against the Commissioner’s decision on questions of law pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (‘Court Act’) and, in an amended summons dated 8 July 2020, 278 Palmer raises five grounds of appeal:

“1.   The Commissioner erred in law by dismissing the application in relation to an issue that was not a principal contested issue without giving the applicant an opportunity to address the issue and thereby denied the applicant procedural fairness or, alternatively, asked herself the wrong question and applied the wrong test having reformulated the contention for herself (Judgment at [79], [94], [95] [96] and [99]).

2. The Commissioner erred in law in concluding, contrary to s 4.15(3A(a)) of the EPA Act, that she required more detailed structural engineering methodology to be satisfied that the development would conserve the existing warehouse buildings on the site (Judgment at [79], [96], [99]).

3.   The Commissioner erred in law in dismissing the appeal without giving the applicant an opportunity to address the issue of the potential impacts of excavation on adjoining properties, being an issue that was not a principal contested issue between the parties and determined that matter without any probative evidence (Judgment at [102], [103]).

4. The Commissioner erred in law in failing to consider the matters in s 4.15 of the EPA Act and failing to make any findings or give any reasons in relation to most of the principal contested issues joined between the parties (Judgment at [4(1),(4)]. [72]).

5. The Commissioner further erred in partially determining a principal contested issue of bulk and scale of the development fronting Sherbrooke Street having regard to the heritage evidence only, without considering the evidence of the town planners and urban design experts on the same issue, or the relevant mandatory considerations under s 4.15 of the EPA Act (Judgment at [72]).”

  1. For the reasons that follow, I consider that 278 Palmer has not made out any of its pleaded grounds and the appeal should be dismissed with costs.

Background

  1. The proposed development is for significant alterations and additions to an existing warehouse building involving the retention of the outer walls, floors and internal structural supports; the extension of the existing building both below (involving significant excavation) and above; a new basement for storage and services; and a change of use to a residential flat building comprising 9 apartments with a rooftop terrace. The building, which is over 50 years old, is within the HCA created under the LEP and is categorised under the Sydney Development Control Plan 2012 (‘DCP’) as a Contributory Item.

  2. In its amended statement of facts and contentions (‘ASFC’) dated 1 October 2019 which was before the Commissioner, Council raised 9 contentions (each subjoined by detailed particulars comprising 138 paragraphs) being: height and setbacks; impacts on residential amenity; overshadowing impacts; adverse heritage impact on a warehouse building older than 50 years; insufficient information; contaminated land; impact on the public domain; failure to demonstrate design excellence; and the public interest. A number of the contentions were resolved at or prior to the hearing before the Commissioner.

Decision under review

  1. The Commissioner (at [4] of the judgment) noted that Council’s position was the proposal should be refused on four grounds being: first, that the bulk, scale and setback of the proposal fronting Sherbrooke Street was inappropriate (and that the proposed fourth storey is not consistent with the definition of an attic); second, a detrimental impact on the significance of the HCA; third, the impact of the proposed building works on the existing structure and the proposed construction methodology is uncertain; and fourth, poor solar access and internal amenity of the proposed apartments.

  2. At [5] and [6] of the judgment, the Commissioner summarised her findings stating:

“[5] Following consideration of the evidence presented and the submissions of the parties, I have determined that the development application warrants refusal on the following broad grounds:

•   The works proposed by the application include the construction of a basement level and the removal of portions of the load bearing structural system of the building. I find that the uncertainty of how these works will occur, whilst ensuring the retention of the existing building fabric, leaves the impacts arising from the development unable to be quantified and assessed.

•   Given the uncertainty identified by the heritage experts and the ambiguity of the tendered structural certification, I am satisfied that there is a potential detrimental impact on the heritage fabric that is unable to be assessed on the information before the Court.

•   Further, the actual form and potential impacts of the development are unable to be assessed as the structural means of stabilising and retaining the existing building during and after the proposed development is not detailed in the development application.

• I am satisfied that it is inappropriate to defer this assessment to a deferred commencement condition of the form in accordance with s4.16(3) of the EPA Act.

•   I am satisfied that the residents’ objections to the application on the grounds that the development proposed represents a risk to the structural soundness of the surrounding buildings have not been adequately addressed by the development application and are a reasonable perceptions of a potential adverse effect their amenity: Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 at [192]-[195]).

[6] My reasoning for these findings is detailed in the following judgement. As a result of the above the appeal is dismissed and the development application refused.”

  1. The Commissioner described the relevant planning controls applicable to the site in some detail at [12]-[33] including (relevant to this appeal) cl 5.10 of the LEP and cl 3.10.1 of the DCP and, thereafter at [34]-[54], considered the expert evidence in relation to heritage impacts. At [35] the Commissioner noted that the “remaining areas of disagreement of the heritage experts”, being Mr Stephen Davies retained for 278 Palmer and Mr Brian McDonald retained for Council, were:

“…

(1)   Whether the bulk, scale, roof scape, setback and architectural form of the proposed additions fronting Sherbrooke Street will have an adverse heritage impact on the contributory building and the contributory buildings in the vicinity;

(2)   [w]hether the level of information provided by the applicant is sufficient to demonstrate that the works will not jeopardise the structural integrity of the building. Further, how the fabric of the existing building, proposed for retention is able to be structurally supported during and after construction.

(3)   Whether the existing boundary wall facing Burton Street is required to be retained and if not what the appropriate finish for a replacement wall should be; and

(4)   [w]hether the external colours and materials of the proposed are appropriate.”

  1. At [36]-[47] of the judgment, the Commissioner summarised the evidence, primarily of the two heritage experts, under the heading “Does the development have a detrimental impact on the significance of the HCA?”.

  2. In relation to the matters concerning the retention of existing walls and structural integrity in relation to the proposed construction, the Commissioner noted at [48]-[54]:

“[48] The experts agreement in relation to the final issue of the sufficiency of evidence that the works will not jeopardise the structural integrity of the building is detailed in the first joint report as follows:

3.8 The experts agree that a structural engineer’s report should be provided that provides support for the basement and a methodology to ensure the building is structurally able to take the basement excavation as proposed.

3.9 The experts agree that more information is required regarding the structural adequacy of the proposal and that the existing brick wall on the boundary should be retained.

(Exhibit 4)

[49] The heritage experts in their supplementary joint report maintain their agreement that ‘a structural engineering methodology is required’ (Exhibit 7).

[50] At 3.27 of the Joint report Mr Davies agrees that: …the drawings do not demonstrate how the fabric proposed for retention can be structurally supported during and after construction.’ Further, Mr Davies states that more structural information is required.

[51] However, Mr Davies noted in his oral evidence and in the supplementary joint report that whilst a structural engineering methodology is required, that such a requirement can be appropriately addressed by a condition of consent. The proposed condition states:

A report or certification form [sic] a practicing structural engineer experienced in dealing with heritage buildings must be prepared. The report must explain how the retained building internal and external elements, such as building facades or chimneys are to be retained, supported and not undermined by the proposed development and give details of any intervention and retrofitting needed. The report is to be accompanied by amended drawings demonstrating the additional structure, impacts on the proposed design and methodology.

(Exhibit 5)

[52] The Applicant, in their submissions, objects to the condition being imposed as a deferred commencement condition and seeks for the condition to be placed in the consent as a requirement to be met prior to the Construction Certificate.

[53] In relation to the final issue, Mr McDonald notes that the proposal intends to retain the east and the upper portion of the west façade of the existing building. He argues that:

‘The structural feasibility of the west façade retention is extremely doubtful as the entire ground floor section of the façade is to be removed. It is also proposed to retain the first floor timber structure, even though a basement is to be excavated below and [a] fire rated party wall would bisect all the joists for its entire length. The drawings are contradictory regarding the extent of the retention of the north and south walls. The ground floor plan shows retention of both walls except at the centre of the site. They would be necessary to support the ends of the floor joists. The first floor plan does not show the north and south walls retained. Sections BB and CC on drawing DA -206 show sections of the north and south walls retained for their full height.’

(Exhibit 4)

[54] At the conclusion of the first joint report Mr McDonald concludes that ‘the structural feasibility of the project is uncertain’ and that in his opinion ‘what is certain is that, if steps are taken to make the design structurally sound, substantial redesign and supporting structural engineering methodology from an engineer skilled in working with heritage buildings will be required’ (Exhibit 4). Importantly, Mr McDonald concludes that the final design outcome from the proposed development is unknown.”

  1. At [55]-[71] of the judgment, the Commissioner outlined the submissions made by counsel for the parties. As recorded by the Commissioner, Council submissions were primarily to the effect that the proposed development would have an adverse impact on the contributory building and that the scale of the proposal would be out of character with the East Sydney Locality as identified in the DCP; that the Court would not permit the demolition of the existing northern brick wall facing Burton Street and thus would either require its retention or, in the alternative, would re-use the bricks; and that it was speculative that any future development of adjoining sites would obscure the public view of this wall.

  2. Relevant to the issues in this appeal, the Commissioner recorded the submissions of Council relating to structural integrity at [59]-[61]:

“[59] Mr Berveling argues that Mr McDonald’s concerns about the structural feasibility of the project are appropriate. He submits that in the context that: the proposal is for the adaptive reuse of a warehouse of more than 50 years, and is a contributory building in the HCA; Mr McDonald’s concerns are reasonable in the circumstances of the proposed development.

[60] On the final issue, Mr Berveling argues the structural certification at Exhibit T has insufficient detail to provide certainty as to what outcome will be realised on the site and as a result of the development. He argues that the structural certificate should be given little weight on the following grounds:

•   [T]hat in addressing the potential impact of the development on the party walls the certification: addresses only the walls to the north and south, not those fronting Palmer Street or Sherbrooke Street; secondly the certification is an undertaking (focussed on ‘future details’) rather than a certification of the development.

•   The certification does not clarify to what reference ‘some minor cracking may occur as a result of building work. We believe these cracks will not be structural’ applies.

[61] Mr Berveling notes that Mr Davies agrees that structural information is required in the proceedings, however notes Mr Davies evidence that this may be resolved by the imposition of a condition on the development consent. Mr Berveling submits that the condition at paragraph [51] can be imposed on the consent as a deferred commencement consent, but maintains that consent ought to be refused on the basis of the uncertainty of the structural certification provided (8/11/2019 transcript at p. 33, 10-30).”

  1. 278 Palmer made submissions before the Commissioner in relation to the appropriateness of the height, scale and setbacks of the proposed development; that the proposal would not have an adverse impact on the significance of the HCA; and in relation to the treatment of the boundary wall fronting Burton Street. The Commissioner also recorded 278 Palmer’s submissions in relation to the issue of structural integrity as follows (at [68]-[71]):

“[68] On the final issue between the heritage experts, Mr Pickles submits that the Court would find that there is sufficient information available to be satisfied that the retained first floor and facades will be supported during construction. Mr Pickles argues that the removal of fabric on the ground floor of the Palmer Street frontage is warranted on the basis that: the façade proposed to be removed it is in poor condition; is thoroughly altered; and consistent with DCP 3.9.7(2) the proposed development will result in the removal of distracting elements. He argues that Mr McDonald does not seek to retain this fabric for its significance and that ‘the only reason to retain the fabric is related to structural support during construction, not because the fabric is significant or original’ (Applicant’s written submissions, p. 6).

[69] Mr Pickles submits that despite the evidence of Mr McDonald, DCP 2012 at cl. 3.10.1(i) requires that alterations and additions ‘are to be supported by a report prepared by a suitably qualified practicing engineer certifying the works will not jeopardise the structural integrity of the building’ (Transcript 8/11/19 p. 11 at [25]). He argues that the Structural Report (Exhibit [L]) and the Structural Adequacy Certificate (Exhibit T) satisfy this requirement.

[70] Mr Pickles reiterates that s 4.15(3A)(a) of the EPA Act applies and argues that Mr McDonald’s evidence seeking a detailed work method statement is a more onerous standard than that which is required by DCP 2012.

[71] Finally, in reply to Mr Berveling’s submissions about the Structural Adequacy Certificate (Exhibit [T]) and in particular the final two paragraphs (reproduced at paragraph [80]) Mr Pickles argues:

…The last two paragraphs are not germane to the certificate. The only relevant part of the certificate for the purposes of the DCP is the bit that picks up the words in the DCP, which is that the footings, walls are capable of supporting the loads from the proposed work shown, and the work can be carried without jeopardising the structural integrity of the existing building, if carried out in accordance with the report of 16 August. That’s the certification. But what it says about party walls is irrelevant. What it says about minor cracking is also irrelevant. That’s not what’s germane. What’s germane is that the work will not affect the structural integrity of the building. So it satisfies the requirements of the DCP.

(Transcript 8/11/19 p. 39 at [5])”

  1. Relevant to 278 Palmer’s fourth and fifth grounds of the present appeal, in relation to the bulk, scale, roofscape, setback and architectural form of the proposed development fronting Sherbrooke Street, although she dismissed the appeal on the basis summarised at [5] of the judgment, the Commissioner was otherwise not satisfied that the proposed development would have a detrimental impact on the significance of either the HCA or any contributory buildings. The Commissioner was also not satisfied that it would be dominant, intrusive or out of scale, and accepted Mr Davies’ approach (at [74]-[76] of the judgment).

  1. Relevant to the other grounds raised by 278 Palmer in the present appeal, the Commissioner made a number of specific findings in relation to the sufficiency of the evidence regarding structural integrity at [79]-[105] of the judgment. At [79] the Commissioner stated:

“On the final issue between the heritage experts, I am satisfied that the issue of whether there is sufficient evidence that the works will not jeopardise the structural integrity of the building is a relevant matter in the assessment of the development. I am satisfied that this matter is a relevant consideration in determining the likely impacts of the development and in consideration of the public submissions received. I am persuaded this issue is of determinative weight on the following grounds:

(1)   The fabric of the existing building is nominated in DCP 2012, within the ‘Building Contributions Map’ as being a contributor to the significance of the HCA.

(2)   The proposed development includes construction of a basement (including excavation of up to 3m) under the existing building, as well as part of the demolition of two boundary walls (Palmer Street and facing Burton Street). These works self-evidently will alter the current structural system of the existing building.

(3)   It was observable on site, and accepted by the parties, that the existing façade on Palmer Street has a visible deflection in the fabric of the wall. This existing deflection is not noted, or addressed, in the Geotechnical Report (Exhibit N) or the Structural Adequacy Certificates tendered.

(4)   DCP 2012 contains a specific provision, at cl. 3.10.1(1) that requires, at development application stage, engineer’s certification that ‘the works will not jeopardise the structural integrity of the building’.

(5)   At the commencement of the hearing onsite, evidence was heard from adjoining neighbours objecting to the proposal. In part, their concerns focussed on the potential for the proposed works to impact the structural stability and integrity of their properties.”

  1. The Commissioner then considered the ASFC and, in particular, recorded pars (86) and (88) (reproduced below at [52]) in relation to structural integrity and detailed the various expert reports and certificates which had been marshalled in response to the contentions. In summary, and having regard to the Structural Report (which was a report styled Structural Engineering Feasibility Report dated August 2017 which became Exhibit L); a structural adequacy certificate (‘Structural Certificate’); a geotechnical engineer’s report (Exhibit N) (‘Geotechnical Report’); and to a portion of the transcript of the hearing (at [82]-[93]] of the judgment), the Commissioner at [94] accepted Council’s submissions that the Structural Certificate did not meet the “provisions” of cl 3.10.1(1) of the DCP.

  2. At [96] of the judgment, having found that the cl 3.10.1(1) control of the DCP had not been met, the Commissioner found that a “variation” pursuant to s 4.15(3A)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) was not warranted on the basis that: first, there was insufficient evidence to quantify the likelihood of detrimental impacts to the existing building; second, there were inconsistencies between architectural plans which created uncertainty in relation to the extent of demolition; and, third, there was no indication of how the first floor structure would be connected to the new structural system, nor how a proposed concrete slab would connect with the existing façade walls. The Commissioner also found that the Structural Certificate did not address the capacity of the existing façade to bear an additional load from the concrete upper floor. Further, although the Heritage Impact Assessment (Exhibit H) recommended that an engineering assessment in relation to the proposed parapet and decorative elements be obtained, no analysis of the brick structure of the building or parapet which was proposed to be utilised as a balustrade had been undertaken.

  3. The Commissioner noted that although the Structural Report identified two engineering “options” which could support the proposed development, neither option had been incorporated or accommodated in the architectural plans. As such, the Commissioner at [96(3)] accepted the “agreed evidence of the heritage experts” that a structural engineer’s report that provides support for the basement and a methodology to ensure that the building is able to “take the excavation” as proposed should be provided. Relevantly, the Commissioner also accepted Mr McDonald’s evidence that “addressing the structural stability of the existing structure during and post construction have the potential to change the development and that more certainty is required prior to DA consent.”

  4. The Commissioner was not satisfied that it was appropriate to defer the assessment of structural impacts to the existing building through a deferred commencement condition (as suggested by Mr Davies) for reasons detailed at [99] of the judgment including: first, it was not appropriate to defer satisfaction of the impact of the proposal to “post consent”; second, cl 5.10(4) of the LEP requires consideration of the impact upon the HCA prior to determination (especially if additional structure is required); third, to defer the assessment of the structural methodology would not be consistent with the role of a consent authority to balance competing impacts and benefits of the proposed development; fourth, any detail provided at a later date has the potential to lead to design changes; fifth, a deferred commencement condition would defer consideration of potential risks to the heritage fabric of the building; and finally, it would result in an inability to define or assess heritage impacts which would affect the ability to determine whether consent ought to be granted.

  5. Finally, at [102]-[103], the Commissioner determined that the development application had not adequately addressed the objections of local residents in relation to possible risks to the structural soundness of surrounding buildings and accepted that such concerns were a reasonable perception of a potential adverse effect.

  6. The Commissioner concluded that the proposal warranted refusal on the basis that the likely impacts of the development are uncertain and that, at [105]:

“…on prudent, precautionary grounds, it is not appropriate to approve the application as it is contrary to the public interest (s 4.15(1)(e) of the EPA Act).”

Consideration

  1. As noted at [3] above, 278 Palmer raises five slightly overlapping grounds of appeal, of which the first and second grounds relate to consideration and findings concerning structural integrity, and the third, fourth and fifth grounds relate to the Commissioner’s consideration of other issues. 278 Palmer submits that each alleged error is vitiating such that the appeal would be upheld, and the matter remitted to the Commissioner for determination.

Grounds 1 and 2

  1. The essence of the first ground is that the Commissioner erred in law by dismissing the application in relation to an issue that was not principally contested and without according procedural fairness. Before considering the specific submissions, I make the following comments.

  2. Class 1 proceedings before commissioners (and judges) of this Court are primarily decided on the merits of the application and the substantive issues joined between the parties. The Court in Class 1 proceedings may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits: s 38(2) of the Court Act.

  3. Although the Court is required to determine proceedings on the substantive issues joined between the parties, that is not to say that every argument or issue advanced by a party in support of the principal contested issue(s) must be considered by the Court (and reasons given for accepting it or rejecting it). Nonetheless, if proceedings are to be determined by reference to matters beyond the issues joined between the parties, procedural fairness requires the parties be given notice of those additional matters and accorded the opportunity to be heard upon them.

  4. The principles of procedural fairness are well understood and are not repeated: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 (‘Segal’) at [42],[95], Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 at [101] (‘Pet Carriers’), Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118; (2018) 236 LGERA 256 (‘Initial Action’) at [129]. It will be a rare case where a failure to accord procedural fairness will not result in a court on appeal granting relief and making a remitter order.

  5. In its first ground of appeal, 278 Palmer submits that the Commissioner erred in requiring a “detailed structural engineering methodology” in order to address a contention (particularised at pars (86) and (88) of Council’s ASFC) in relation to the DCP provisions concerning structural integrity. 278 Palmer submits that, in doing so, the Commissioner reformulated Council’s contention in a manner which ignored the existence of the Structural Report and thus dismissed the application on the basis of an issue that was not principally contested which, in turn, denied 278 Palmer procedural fairness. In a similar vein (although alleging a different error), in its second ground of appeal, 278 Palmer submits that the Commissioner’s requirement for a “more detailed structural methodology” imposed a more onerous standard than what was otherwise required by the DCP and was thus contrary to s 4.15(3A)(a) of the EPA Act.

  6. 278 Palmer submits that Council’s ASFC only made reference to cl 3.10.1 of the DCP in the context of broadly addressing heritage matters, however the Commissioner instead framed the issue to be decided as whether there was “sufficient evidence” that the works would not jeopardise the structural integrity of the building. 278 Palmer submits that this was neither a requirement of the DCP nor a contention raised by Council. Although the particulars of “Contention 5 – Insufficient Information” at par (101) of the ASFC contended that the proposed development put at risk the structural integrity of the building, 278 Palmer submits that this did not specify what further information was required or assert that cl 3.10.1(1) of the DCP had not been met.

  7. 278 Palmer submits that the Commissioner did not make a discrete finding that the Structural Certificate did not satisfy the DCP requirements and that, at [94] of the judgment, the Commissioner adopted the submissions of counsel for Council which concerned parts of the Structural Certificate that were not relevant to satisfying cl 3.10.1 of the DCP. 278 Palmer submits that this indicates that the Commissioner conflated the issues of structural integrity of the building with that of adjoining properties.

  8. 278 Palmer submits that the requirements of cl 3.10.1(1) were otherwise fulfilled by the Structural Report and Structural Certificate (or additionally the Geotechnical Report and an earlier structural adequacy certificate) which were referred to in the judgment at [81]-[86], [87] and [88]-[90] respectively.

  9. 278 Palmer submits that the evidence of Council’s heritage expert, Mr McDonald (and the Commissioner’s acceptance thereof) could not be said to have put 278 Palmer on notice that structural integrity was in issue. Mr McDonald’s need for a “structural engineering methodology” was expressed in circumstances where he had not given regard to the material that had been earlier submitted pursuant to cl 3.10.1(1) which included the existing Structural Report. Further, it was not open to Mr McDonald to require a “work method statement” which was not required by either Council’s contentions or the DCP, particularly in circumstances where a report and certificate stating that the works would not jeopardise the structural integrity of the building had already been provided and tendered.

  10. 278 Palmer notes that Mr McDonald is not a qualified structural engineer, and, in any event, he expressed satisfaction that draft Condition 23 (noted at [51] of the judgment) satisfied his concern regarding the need for a “work method statement”. 278 Palmer submits that it was therefore not open to Mr McDonald or the Commissioner to require more information beyond what was required by cl 3.10.1(1) of the DCP in circumstances where Council did not raise that matter as a concern; or, even if it were open to do so, 278 Palmer should have been given an opportunity to address such a concern.

  11. 278 Palmer further notes that the question of structural engineering methodology was raised during oral submissions and that the ensuing discussion was confined to the possibility of a condition resolving that issue. This included an acknowledgement by Council that Mr McDonald’s concerns in relation to further engineering detail and other criticisms regarding particular paragraphs of the Structural Certificate were addressed by the proposed draft condition. The Commissioner’s finding at [96(4)] of the judgment did not account for this acknowledgement.

  12. In relation to the second ground of appeal, 278 Palmer submits that the Commissioner’s conclusions at [79], [96] and [99] of the judgment were in error as the Commissioner sought to impose a more onerous standard than that required by the DCP, contrary to s 4.15(3A)(a) of the EPA Act. Although cl 54 of the Environmental Planning and Assessment Regulation 2000 (NSW) (‘EPA Regulation’) permits a consent authority to request additional information, 278 Palmer submits that any such request should be read in light of subcl 54(4) which explains that the intent of the provision is to limit the detail required prior to development consent being granted and not to require construction detail until the time of the relevant construction certificate. 278 Palmer notes the level of detail required by the Schedule 1 of the EPA Regulation in that development applications require “sketches” as opposed to “detailed plans” as required for a construction certificate.

  13. 278 Palmer submits that the Commissioner asked herself the wrong question of whether to apply flexibility to the standard in cl 3.10.1(1) of the DCP (pursuant to s 4.15(3A)(b) of the EPA Act) in circumstances where first, 278 Palmer had not sought to vary the standard; second, in the absence of a finding that the material provided by 278 Palmer had failed to meet the standard required by the DCP; and, third, where sufficient information had already been provided to assess the likely impacts of the development, as opposed to certainty as to how those impacts would be managed.

  14. In relation to the first ground of appeal, Council submits that the issue of structural integrity was clearly raised as a contention in pars (86) and (88) of the ASFC. It also points further to pars (85) and (101) as raising the issue of insufficient information and cl 3.10.1 of the DCP. Council notes that the Structural Report, Structural Certificate, Geotechnical Report and an earlier structural adequacy certificate were all documents before the Court that were relevant to this issue. As such, Council submits that the structural integrity of the building and how it would be addressed became a principal contested issue and was one of several aspects of the adverse impacts on the building in relation to its heritage status. Council submits that the issue primarily concerned “whether retention of the remainder of the building was feasible given the proposed excavation for a basement and the substantial demolition of the building” referred to specifically in pars (86), (88) and (101) of the ASFC.

  15. Council notes that the heritage experts made reference to the issue of structural integrity on a number of occasions, namely – through recommending in their joint report that a structural engineer’s report be provided (and Mr McDonald’s further evidence on this recommendation); through their supplementary joint report where the experts continued to agree that a structural engineering methodology was required; and through the oral evidence given by the heritage experts.

  16. Council submits that the question of whether the two reports and two certificates fulfilled the requirements of cl 3.10.1(1) of the DCP was a matter for the Court and more than merely a “tick-the-box exercise”. Council notes that submissions were made to the Commissioner in relation to whether the Structural Certificate and Structural Report complied with cl 3.10.1(1) and that the Commissioner found as a fact (at [94] of the judgment) that the Structural Certificate did not meet those requirements. Council submits that this finding related to the building and not adjoining properties given the context in which that finding was made.

  17. Council notes that the Commissioner was well aware that the Structural Certificate contained three provisos – first, that the work be carried out generally in accordance with an earlier report of the structural engineers (dated 16 August 2017); second, that the details will be shown on future certified structural drawings which “will be prepared” by the engineers; and, third, that the work is carried out within the recommendations of the Geotechnical Report. These were of concern to the Commissioner.

  18. Council submits that 278 Palmer was not denied procedural fairness and was provided sufficient opportunity to address the issue of structural integrity, noting that the Statement of Environmental Effects, the ASFC, and the Joint Heritage Report all made reference to this issue and that 278 Palmer made submissions in relation to this matter.

  19. Council therefore submits that the first ground of appeal is not made out as the structural integrity of the building was a principal contested issue; the Commissioner did not reformulate the contention; the Commissioner properly dealt with the issue as she could not assess the potential impacts on the heritage fabric (and the building) as it was not detailed by the development application; and as the Structural Report and Structural Certificate did not satisfy cl 3.10.1(1) of the DCP.

  20. In relation to the second ground of the appeal, Council submits that it was open to the Commissioner to conclude that s 4.15(3A)(b) of the EPA Act did not assist 278 Palmer as a variation to the standard set by cl 3.10.1(1) of the DCP was not appropriate in the circumstances. It also submits that Schedule 1 and cl 54 of the EPA Regulation do not assist 278 Palmer.

  21. Council submits that, irrespective of the discussions concerning the proposed draft Condition 23, it was open to the Commissioner to find that the proposed condition (deferred or otherwise) did not address or resolve the structural integrity concerns.

  22. In summary, Council submits that the findings made were open to the Commissioner as the matters concerning structural integrity and whether the Structural Certificate satisfied the DCP requirements were relevant to the assessment of the development application – both in terms of likely impacts caused by the proposed development and as a matter of public interest. Council submits there was no denial of procedural fairness.

  23. In reply, 278 Palmer submits that its development application, Structural Report and Structural Certificate were responsive to pars (86) and (88) in the ASFC in the manner that contention was framed by Council, but it was through the evidence of Mr McDonald that the issue was re-cast as being one of “lack of certainty” which was a different contention to that posed by Council. 278 Palmer notes that the ASFC did not itself request a “work method statement” or “structural engineering drawings”, and that those requests made by Mr McDonald were in effect seeking building and engineering detail plans.

  24. 278 Palmer emphasises that Council did not seek to amend its contentions in light of Mr McDonald’s opinion, however, after evidence and submissions were given, instead accepted (as Mr McDonald also did) that a condition addressing structural integrity and retention of the building would resolve the relevant contention and the related structural concerns.

Findings on grounds 1 and 2

  1. I do not accept 278 Palmer’s submission that the Commissioner either reformulated a principal contested issue or asked herself the wrong question such that 278 Palmer was denied an opportunity to address the issue regarding the structural integrity of the building. In addition to my comments at [25]-[27] above, while I accept that a denial of procedural fairness is, in most circumstances, an error of the law amenable to an appeal on a question of law (Pet Carriers at [10]; Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 (‘Warkworth Mining’) at [4]), my primary reason for rejecting the submission is my view that the Commissioner’s reasoning does not amount either to the reformulation of a principal contested issue or that she decided the matter on a basis that 278 Palmer was not aware of, and, in the circumstances, does not amount to a denial of procedure fairness. My reasons follow.

  2. Although I consider that the Commissioner provided adequate and sufficient reasons for her findings, correctly identified the issues that had been raised by the parties, properly considered the issues and the evidence relevant to her consideration, and made factual findings to which she was entitled, the primary issue in relation to the first two grounds of appeal is whether the Commissioner failed to give sufficient notice that the issues relating to her concerns regarding structural integrity could be a matter of determinative weight.

  3. The first question is whether concern regarding structural integrity was a “principal contested issue” between the parties. Litigation in this Court, including an appeal against a consent authority’s decision to refuse consent to a development application, is adversarial in nature. The parties are opposed to each other. Although principal contested issues are usually those expressly raised by Council in their ASFC, that does not mean that other issues cannot be raised at the hearing: Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102 (‘Denoci’) at [169].

  4. 278 Palmer essentially submitted that it was denied procedural fairness because the contention was not advanced in the manner in which the Commissioner considered it, without Council continuing to support that submission, and without allowing 278 Palmer an opportunity to obtain the additional information sought, I do not accept this submission.

  5. Council’s ASFC contained Contention 4, “Adverse heritage impacts on warehouse buildings older than 50 years, contributory buildings and heritage conservation area.” The contention then stated, “The proposed development is not compliant with the heritage provisions outlined within the LEP and DCP” and the particulars at pars (86) and (88) thereafter provided:

“(86)   The proposed excavation for a basement under the existing warehouse building older than 50 years (also a contributory building) puts at risk the structural integrity and survival of the subject building and of adjoining buildings (also contributory buildings).

…

(88)   The substantial demolition of the building (retaining two facades, two part boundary walls and a part floor only) does not retain a contributory building and its significant fabric, contrary to clause 3.9.7 of the DCP. The structural strengthening works and fire-rating works required are likely to have a material and aesthetic impact and will conceal the small amount of significant fabric that is proposed to be retained.”

  1. Although Council’s fifth contention in the ASFC, which more specifically concerned insufficient information and stated “the proposal has not been accompanied by the following required documentation to facilitate a proper assessment of the application” was no longer pressed at the hearing, it is clear that the impacts of the proposed development including those resulting from the structural strengthening works upon the building (being a warehouse building older than 50 years and a contributory building within the HCA) and adjoining buildings was nonetheless raised as a principal contested issue in the pleadings.

  2. Even if the ASFC had not raised the structural integrity of the heritage building as a principal contested issue, it is clear, and I find that these concerns were nonetheless raised as an issue between the parties at the hearing through expert evidence. Having recited cl 5.10(4) of the LEP (reproduced at [60] below) at [19] of the judgment, the Commissioner then noted the evidence and further provisions in the relevant instruments relating to heritage matters. Having also noted the various interrelated clauses of the DCP which provided principles and controls for the locality and the specific controls for contributory buildings, the Commissioner recited the relevant control (cl 3.10.1 of the DCP) which set out the objectives and discrete controls for warehouses older than 50 years. The Commissioner then summarised the evidence specifically in relation to whether the development would “have a detrimental impact on the significance of the HCA”. She specifically noted the areas of disagreement between the heritage experts which are summarised above at [9] and then considered and decided each outstanding issue.

  3. The Commissioner dealt with the concerns (and evidence) in relation to the retention of existing boundary walls (including whether a replacement of the boundary wall was necessary) and recorded that the heritage experts agreed that a “structural engineering methodology” is required. It was in this context that the proposed condition (“Condition 23”) providing for a further report (or certification) that was to address “amended drawings demonstrating the additional structure, impacts on the proposed design and methodology” arose. The Commissioner noted the various submissions and, in particular (at [60]-[61] of the judgment), the submissions made on behalf of Council that the Structural Certificate should be given little weight. She specifically, and relevantly, recorded Council’s submission that cl 3.10.1(1) of the DCP requires that alterations and additions are to be supported by a certificate and she found that the Structural Certificate did not meet the provisions of cl 3.10.1(1).

  4. I consider that the Commissioner’s reasoning indicates that she was acutely aware of the evidence and of the not unsubtle differences between the approach of Mr McDonald and Mr Davies. Importantly, it is clear that her consideration of the evidence and her findings were not confined to structural integrity simpliciter but, read and understood fairly and in context, properly expressed her acceptance of the evidence of Mr McDonald that the “final design outcome” for the proposed development is uncertain and/or unclear, and not simply a concern that structural integrity in a strict engineering sense could or would not be able to be shown. As such, she did not ask herself the wrong question or “reformulate” a contention for herself.

  5. It is clear that in considering the proposed development concerning the adaptive re-use of a warehouse more than 50 years of age and being a contributory building in the HCA, the Commissioner found that Mr McDonald’s concerns were reasonable in the circumstances. Moreover, I consider that she was entitled to so find within the contentions and the issues identified between the parties.

  6. The Commissioner’s approach and findings at [79] of the judgment were clear:

“On the final issue between the heritage experts, I am satisfied that the issue of whether there is sufficient evidence that the works will not jeopardise the structural integrity of the building is a relevant matter in the assessment of the development. I am satisfied that this matter is a relevant consideration in determining the likely impacts of the development and in consideration of the public submissions received…” (Emphasis added.)

  1. The first sentence makes clear that the issue between the heritage experts related to whether or not there was sufficient evidence that the works will not jeopardise the structural integrity of the building was a relevant matter in the assessment of the development. However, it is the second sentence which effectively provides that the nature of any works (or, more particularly, further works or options) to be incorporated into the final building plans is a relevant consideration in “determining the likely impacts”. I consider that this is the gravamen of the Commissioner’s reasoning and ultimate finding and is reflective of and responsive to an identified issue between the parties.

  2. It is common ground that in exercising the function of a consent authority, the Commissioner was bound to consider the impacts including, for example, any adverse (heritage or other) impacts of the proposed development on the building itself (and the HCA) along with the requirements of cl 3.10.1 of the DCP. In particular, cl 5.10(4) of the LEP provides:

(4)   Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

  1. Simply stated, absent any denial of procedural fairness, it is the responsibility of an applicant to adduce all of the required evidence to satisfy the requirements for development consent irrespective of whether the matter has been raised as an issue by the parties or the decision-maker (Denoci at [124]-[127]). The manner in which an applicant chooses to advance its case to persuade a commissioner to grant consent is at the discretion of the applicant. A party’s failure to adduce relevant evidence does not give rise to a failure to afford procedural fairness: Warkworth Mining at [112].

  2. As the proponent, 278 Palmer therefore bore the burden of adducing evidence and establishing the facts necessary for the Commissioner to “consider the effect…”. 278 Palmer elected to adduce evidence from Mr Davies to this effect and tendered evidence including the Structural Certificate and Structural Report.

  3. The evidence of Mr Davies and the nature of the Structural Certificate were criticised by both Mr McDonald and Council in the expert evidence, submissions, and during the hearing before the Commissioner. These concerns were expressed on a number of occasions. For example, the issue was brought to the forefront when the heritage experts agreed in their joint report that:

“…a structural engineer’s report should be provided that provides support for the basement and a methodology to ensure the building is structurally able to take the basement excavation as proposed. Particular 86.”

  1. The heritage experts made further reference to this issue later in the joint report, in their supplementary joint report, and in oral evidence. Written and oral submissions were made by the parties and, as recorded by the Commissioner at [71] of the judgment, counsel for 278 Palmer made specific submissions defending the ability of the Structural Certificate to certify that the development would not jeopardise the structural integrity of the building.

  2. Having considered the matters in the ASFC, the expert evidence marshalled including the written and oral evidence of Mr McDonald, and the written and oral submissions made at the hearing, I consider that it was therefore clear that the potential adverse impact of the works related to the structural integrity of the building (as articulated by both the ASFC and in Mr McDonald’s evidence) was in issue between the parties. As such, the Commissioner was entitled to find that she did not have sufficient information to accurately assess the impacts (and, more specifically, any impacts from the works that may be required to ensure structural integrity) and not simply to adopt the evidence of Mr McDonald, but to form her own opinion as to the adequacy of the evidence.

  3. I find that, in the circumstances, the Commissioner was not obliged to advise what further evidence 278 Palmer should adduce, or, in simple terms, how 278 Palmer should run its case: Forgall Pty Ltd v Greater Taree City Council [2015] NSWLEC 61; (2015) 209 LGERA 160 (‘Forgall’) at [87].

  4. 278 Palmer, having become aware of Council and the Commissioner’s concerns regarding the adequacy of information regarding adverse impacts on the heritage building, elected to rely on the possibility of those concerns being resolved by way of a condition of consent. This course of action was one which involved an element of risk as the provision of further information prior to consent could have resolved the issue: Forgall at [84].

  5. Although the parties appeared to agree that the precise issue of structural integrity could be resolved by way of a draft condition, the Commissioner was entitled to maintain a concern, as opined by Mr McDonald, that the precise nature of the works that may comprise the engineering solution and the effects thereof were not identified. The Commissioner was entitled to her view that the draft condition inappropriately deferred satisfaction of the impacts for the reasons she detailed at [99] of the judgment.

  6. As such, the Commissioner did not, as contended by 278 Palmer, ask herself the wrong question nor did she reformulate the contention as submitted by 278 Palmer. The Commissioner was concerned with the impacts that may result from whatever engineering solution may be ultimately suggested and adopted. This does not amount to a reformulation of an issue properly arising and of which 278 Palmer was aware.

  7. Apart from a concern regarding s 4.15(3A)(a) of the EPA Act raised in the second ground of appeal, to the extent that there was a suggestion in 278 Palmer’s submissions that the Commissioner inappropriately dealt with, misunderstood or misapplied any of s 4.16(3) of the EPA Act, cl 5.10(4) of the LEP, or cl 3.10.1(1) of the DCP, I consider that there is nothing in the Commissioner’s reasoning that would support such a suggestion.

  8. Ground 1 is not made out.

  9. As both parties submit, there is overlap between the first and second grounds of appeal in that both grounds relate to the same factual matter but allege a different type of legal error. The second ground is based upon the suggestion that, contrary to s 4.15(3A) of the EPA Act, the Commissioner “…required [a] more detailed structural engineering methodology…” and thus erred in law.

  10. The fact that the Commissioner found that the Structural Certificate did not meet the standard set by cl 3.10.1(1) of the DCP and was not satisfied with the information provided is neither indicative nor decisive that she was applying a more onerous standard contrary to s 4.15(3A) of the EPA Act. I consider that this is clear from [79], [96] and [99] of the judgment, being the specific paragraphs relied upon by 278 Palmer to support this ground.

  11. The Commissioner was not satisfied that the Structural Certificate (again particularly with regard to its three provisos) allowed her to properly consider the impacts that would result from the proposed development. I find that, in the circumstances, the Commissioner’s view that further structural methodology was needed is an available finding of fact that the information before the Court was insufficient to meet the standard set by the DCP or (as considered in more detail under the first ground above) insufficient for the Commissioner to appropriately assess likely impacts. Finding as a matter of fact that the Structural Certificate did not provide the appropriate level of detail was a factual finding available to the Commissioner and her finding that more information such as how the further engineering works would affect the proposed development was required in order to be satisfied of the relevant impacts does not indicate an error contrary to s 4.15(3A) of the EPA Act.

  12. As such, again, I do not find that the Commissioner erred on a question of law in requiring further information in order to be satisfied of the likely impacts.

  13. Although it was unclear whether 278 Palmer maintained an earlier submission that there was a discrete infringement of cl 54 of the EPA Regulation, for completeness I do not consider that this has occurred. Clause 54 simply provides that a consent authority is entitled, but not obliged, to seek additional information.

  14. The Commissioner plainly stated at [99] of the judgment that she was satisfied that a detailed structural engineering methodology has the potential to lead to design changes within the proposed development. Moreover, in finding as a matter of fact that the Structural Certificate did not meet the standard set by cl 3.10.1 of the DCP, the Commissioner was entitled, if not required, to consider that standard flexibly pursuant to s 4.15(3A)(b) of the EPA Act, irrespective of whether the parties sought for that standard to be flexibly applied. However, this would not be an error of law and is not, in any event, a vitiating matter.

  15. The Commissioner did not ask herself the wrong question by considering the application of this provision. The Commissioner was entitled to conclude that a flexible application of the standard in cl 3.10.1 of the DCP was not appropriate in the manner she did at [95] and [96] of the judgment. Although the Commissioner expressed the flexible application of the standard in terms of a “variation” to the standard, I accept Council’s submission that the use of that term is nonetheless consistent with the task permitted by s 4.15(3A)(b) of the EPA Act.

  16. Ground 2 is not made out.

Ground 3

  1. 278 Palmer submits that the Commissioner erred in finding at [102]-[103] of the judgment that there was a lack of certainty about potential structural impacts of excavation on adjoining properties and using this finding as a reason for refusal without giving 278 Palmer an opportunity to address this issue.

  2. 278 Palmer submits that no contention was raised by Council in the ASFC as to the structural integrity of adjoining properties apart from contentions referring to the “public interest” which, in any event, were said, at par (136) of the ASFC, to be “largely addressed by the preceding contentions”. 278 Palmer submits no other indication was given that potential structural impacts to adjoining properties was in issue, noting that pars (106) and (107) of the ASFC regarding insufficiency of information were not pressed by Council at the hearing.

  3. 278 Palmer submits that the Commissioner, when citing aspects of the Geotechnical Report, did not refer to the recommendations made in the Geotechnical Report for “detailed dilapidation reports [at neighbouring properties] to be prepared”. No further reference was made in relation to this concern during the hearing with the exception of an enquiry made by the Commissioner as to whether a reference to “minor cracking” in the Structural Certificate was in relation to the proposed development or adjoining properties. 278 Palmer thus submits that this concern was addressed by it through the proposed dilapidation conditions. 278 Palmer submits that requiring further information was erroneous, perverse and unreasonable in circumstances where it is not possible to assess the structural condition of adjoining properties without permission or until after excavation took place, and where there was no probative evidence supporting such a concern.

  4. 278 Palmer further submits that the concern regarding the structural integrity of adjoining properties was only raised by objectors and that such concerns were not supported by evidence; were of a generally vague nature; were made without suggesting that the proposed dilapidation conditions or the Geotechnical Report were inadequate; and made in circumstances where the concern was not a contested issue between the parties or one raised by Council.

  1. 278 Palmer further submits that the Commissioner’s reliance upon Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 failed to note the error referred to by Preston CJ of LEC at [203] that consideration of matters must nevertheless be based upon probative evidence, which was not present in this case. 278 Palmer submits that the Commissioner’s conclusion at [102] of the judgment was therefore based upon the fears of objectors rather than on the basis of probative evidence and, in circumstances where the issue was not contested between the parties, the Commissioner failed to afford procedural fairness through giving notice and an opportunity to address those concerns.

  2. In response, Council submits that, first, its suggested “concession” (at par (136) of the ASFC) that public interest issues had been “largely addressed by previous contentions” needs to be read in context and that those issues had not been fully addressed; second, the Commissioner had given 278 Palmer notice of, and an opportunity to address, the issue when the Commissioner brought the reference to “some minor cracking” in the Structural Certificate to 278 Palmer’s attention and advised that it might assist 278 Palmer for that matter to be clarified; third, 278 Palmer had made submissions regarding the impact of the development on adjoining properties; fourth; public submissions are required to be taken into account and this requirement is not diminished if the submissions are not based on probative evidence; and fifth, it was open to the Commissioner to inform herself of the potential impact to adjoining properties.

  3. Council also submits that a submission made by an objector need not attach its own evidence supporting the concerns expressed therein if there is probative evidence otherwise before the Court, such as the Geotechnical Report in this case.

  4. Council submits that the proposed condition apparently relied upon by 278 Palmer which would require dilapidation reports for adjoining properties is not an appropriate response to and does not address the concerns of the Commissioner as to the absence of evidence. Council further submits that the Commissioner’s finding in this regard did not affect the ultimate conclusion that the development should be refused on the basis of structural integrity concerns with the building itself.

Findings on ground 3

  1. The Commissioner was required by dint of s 4.15(1)(d) of the EPA Act to take into account submissions made in relation to the development application. At [88]-[93] of the judgment, the Commissioner records that concerns were raised by objectors at the hearing onsite in relation to the impact of the proposed works upon the structural soundness of adjoining properties. The Commissioner also recites part of the Structural Certificate (at [88]) and notes that counsel for 278 Palmer clarified that the Structural Certificate makes no recommendation or certification in relation to adjoining properties (at [93]).

  2. I accept and find, as submitted on behalf of Council, that during the first day of the hearing the Commissioner alerted 278 Palmer to the lack of clarity in an earlier structural certificate where it referred to “some minor cracking may occur as a result of the building work” and inquired whether the structural engineer was discussing minor cracking occurring within the existing building or in relation to adjoining buildings, with the Commissioner stating, “it might assist the applicant for that to be clarified…” (Tcpt, 6 November 2019 p 3(45)-p 4(7)).

  3. Although not submitted by Council, I note that par (86) of Council’s ASFC (extracted at [52] above), albeit under Contention 4, stated:

“The proposed excavation for a basement puts at risk the structural integrity and survival of the subject building and of adjoining buildings (also contributory buildings)”. (Emphasis added.)

  1. This is in addition to par (135) of Council’s ASFC (under Contention 8, relating to “public interest”) which specifically records that an issue raised in public submissions included structural integrity.

  2. Further, as referred to by the Commissioner at [102] of the judgment, the Geotechnical Report identified a risk to adjoining buildings. That risk was raised at p 6:

“We recommend that considerable caution be taken during rock excavation on the site as there will likely be direct transmission of ground vibrations to neighbouring buildings and structures. The proposed excavation will abut the neighbouring houses to the north and south. Therefore, prior to excavation commencing, detailed dilapidation reports should be compiled on the buildings and structures to the north and south, and the owners asked to confirm that the reports present a fair record of existing conditions. The dilapidation reports can then be used as a benchmark against which to assess possible future claims for damage arising from the works. …”

  1. Although 278 Palmer submits that the Commissioner ignored the later recommendation contained in the Geotechnical Report that this risk be addressed through the preparation of detailed dilapidation reports, I find that the Commissioner was nonetheless entitled to take into account the underlying concern regarding potential impacts to adjoining buildings as expressed by both the Geotechnical Report and the objectors. Further, the Commissioner was aware of the extent of the excavation that was proposed and, in this context, made specific reference to the basement level plans and the Geotechnical Report at [102].

  2. In circumstances where the Commissioner elsewhere in the judgment has referred to other evidence, including all of the geotechnical evidence, no inference should be drawn that the Commissioner did not consider that other evidence: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [98].

  3. I find that the Commissioner was not in legal error by taking into account the possibility of risk simply because a recommendation was made in the Geotechnical Report that dilapidation reports be prepared. In any event it is clear from the above quotation from the Geotechnical Report that the preparation of dilapidation reports was not intended to mitigate any likely impacts caused by the proposed development but was instead recommended so that the precise extent of those impacts could be quantified and later compensated for.

  4. Also, I do not accept 278 Palmer’s submission that the objectors’ concerns were not based upon evidence in circumstances where there was evidence before the Court (being the Geotechnical Report) indicating that those concerns were not without foundation.

  5. In light of the above, I do not consider that 278 Palmer has been denied procedural fairness as the issue of impacts to adjoining buildings was raised by objectors, in the Geotechnical Report, and in the ASFC. 278 Palmer was aware of the objectors’ concerns and chose to address any such concerns by reliance on a draft condition providing for dilapidation reports: Warkworth Mining at [112] and [169]. I repeat my comments in relation to the first ground that the onus lies with an applicant to furnish the Court with all material required to establish its case.

  6. Even if the Commissioner had erred in giving weight to these concerns and leaving aside the submission that she denied 278 Palmer procedural fairness, which I do not find, it is clear from the judgment when read as a whole that the Commissioner’s dismissal of the application was not driven by her finding that the development application did not adequately address risks to the structural soundness of the adjoining buildings, but it was instead a matter she legitimately took into account. The Commissioner specifically noted at [79] of the judgment that the issue of structural integrity of the building itself (as opposed to adjoining buildings) was a matter of “determinative weight”. The Commissioner’s findings should be seen in context as part of her overall findings. There is no error of law.

  7. For these reasons and accepting Council’s submissions noted at [85] above, ground 3 is not made out.

Grounds 4 and 5

  1. The fourth and fifth grounds of appeal primarily concern [72] of the judgment, being the first paragraph under the heading “Findings”, where the Commissioner states:

“I note that the planning and urban design experts also provided evidence on the appropriateness of the bulk and scale of the proposed development facing Sherbrooke Street. For reasons that follow in the judgment, I have not made findings on their evidence on this issue and have contained my findings on the proposed additions fronting Sherbrooke Street and their heritage impacts.”

  1. In the fourth ground of appeal, 278 Palmer submits that this statement demonstrates that the Commissioner failed to consider all mandatory matters required by s 4.15 of the EPA Act and failed to make findings (and give reasons) in relation to most of the principal contested issues between the parties. In the fifth ground of appeal, 278 Palmer alleges more specifically that the Commissioner (although apparently making a discrete finding in favour of 278 Palmer) determined the issue of bulk and scale of the development by having regard to the heritage evidence and to the exclusion of other experts in relation to the same issue.

  2. Interestingly, and as acknowledged by 278 Palmer, the Commissioner was not persuaded by the evidence of Mr McDonald called on behalf of Council that the proposed bulk, scale, roofscape, setback and architectural form of the proposed development fronting Sherbrooke Street would have a detrimental impact on the significance of the HCA or the contributory buildings.

  3. 278 Palmer submits that the Commissioner expressly did not make findings in relation to the evidence of the town planners and urban designers (at [72] of the judgment) as the Commissioner erroneously considered the structural adequacy issue and evidence of the heritage experts to be determinative. As the issue of structural adequacy was neither a precondition nor a jurisdictional issue, the Commissioner should have had regard to other relevant matters for consideration beyond only one “source of evidence”.

  4. 278 Palmer further submits that the requirements in the DCP relating to the likely impact on the natural and built environment, which call into question the bulk and scale of the proposed development, was a mandatory consideration required to be taken into account. The Commissioner’s determination that the building would not be dominant, intrusive or out of scale (at [73]-[78] of the judgment) again, although in favour of 278 Palmer, was in error as it was decided by reference to the heritage evidence alone and the Commissioner “put to one side” the town planning evidence and consideration of the relevant controls contained within the DCP and the LEP. 278 Palmer further contends that the Commissioner dealt with the evidence in a piecemeal or “compartmentalised” fashion such that the Commissioner’s consideration of questions concerning bulk and scale did not account for all the evidence relevant to that matter. The Commissioner thus only decided one part of the contention relating to the heritage impact of the proposed development.

  5. As such, 278 Palmer submits that the Commissioner failed to provide reasons in relation to all of the principally contested issues in the appeal as the Commissioner had “put entirely to one side more than 50% of the evidence in the case”. 278 Palmer submits that, had the heritage contention been determined on the basis of all relevant evidence, the issue of structural integrity may have been given different weight such that it might have not been considered to be determinative by the Commissioner.

  6. In response, Council submits that the Commissioner’s determination as to bulk and scale would not have resulted in a different outcome in the proceedings as bulk and scale was an issue unrelated to the findings upon which the Commissioner based her ultimate conclusion.

  7. Council submits that the duty to give reasons is confined to the essential grounds upon which the decision rests, noting that the Commissioner’s reasoning process and findings in relation to the structural integrity issue are exposed at [5], [79]-[105] of the judgment.

Findings on grounds 4 and 5

  1. While it is accepted that a commissioner or a judge would contravene their duty to give reasons if they fail to address an issue joined between the parties which, if decided in a particular way, would result in a different decision to that which the commissioner or judge has arrived, the duty to give reasons does not include a requirement to decide every issue or deal with every argument advanced by a party that is otherwise unnecessary provided that the decision-maker’s reasoning processes are articulated and the relevant findings made: Segal at [93]. As such, a decision-maker may decide a case in a way that does not require the determination of a particular issue.

  2. It is also apposite to note the following passage from Segal at [43]:

“Accordingly, in my opinion, it does not necessarily follow that a Commissioner or judge of the Land and Environment Court is required to give reasons only with respect to his or her subjective thought processes in coming to their particular decision. Notwithstanding those thought processes, their duty to give reasons would be contravened if they failed to address an issue joined between the parties which, if decided in a particular way, would result in a different decision to that to which the Commissioner or judge has arrived. Thus, if issues A, B and C be joined between the parties and the Commissioner or judge only addresses issues A and B, he or she will have erred in law by failing to address issue C if the resolution of that issue in favour of one or other of the parties would have resulted in a different outcome to that arrived at upon a determination of issues A and B. On the other hand, if issue C would have had no bearing upon the outcome arrived at in accordance with the determination of issues A and B, then it need not be addressed.”

  1. So considered, I find that it is clear that the Commissioner carefully expressed her reasons for refusing the development application and, as I have noted earlier at [8], the “broad grounds” upon which the Commissioner reached her decision were summarised at [5] of the judgment. The Commissioner’s reasoning is thereafter set out in some detail.

  2. As I have found in my consideration of the first and second grounds of appeal, the Commissioner was not satisfied of the likely impacts that may result from the further works as the extent of those works was to be determined consequent upon further engineering input. This was a finding of fact based upon the evidence that was available to her. Again, the Commissioner’s reasons were carefully set out at [79] of the judgment and following, and she concludes at [105] that the development warrants refusal on the basis that, in the circumstances she has canvassed, the likely impacts of the development are uncertain.

  3. In the context of the above, I do not accept, as submitted by 278 Palmer, that the Commissioner expressly “set aside consideration of the planning and urban design evidence”. Properly understood, and not adopting a fine-tooth comb approach, it is apparent that the Commissioner was clearly aware of the evidence of the town planning and urban design/architecture experts, including their detailed written and oral evidence, and considered, as she was entitled, that she did not need to make findings in relation to those areas as she considered that such issues, however decided, would not alleviate her concerns in relation to the other matters she had found determinative.

  4. Adopting the reasoning explained in Segal at [43], it is apparent that the Commissioner did not need to address, or give reasons for, any discrete contest or issue between the planning and design experts, as the resolution of those issues would not have affected the ultimate outcome which was that concerns relating to structural integrity were a matter of determinative weight. The Commissioner noted that planning and urban design evidence “also” provided evidence in relation to the bulk and scale aspect. She simply records, which I consider she was entitled, that she did not make findings on “their evidence on this issue” and contained her findings on the proposed additions fronting Sherbrooke Street and their heritage impacts (at [72] of the judgment).

  5. For the above reasons, I do not accept that the Commissioner was required to give consideration to, or reasons regarding, the nature and extent of the planning and urban design experts. As such, I do not accept the submission that the Commissioner sought to “compartmentalise” her decision-making or that the Commissioner was in fact “partially determining a principal contested issue of bulk and scale of the development fronting Sherbrooke Street having regard to the heritage evidence only.”

  6. I do not accept that the Commissioner made findings regarding the broader contention relating to bulk and scale on the basis of the heritage evidence alone. Properly understood, the issue which the Commissioner resolved was more nuanced in that she decided that she did not have enough information pertaining to the structural integrity of the building in order to assess the likely impacts of the proposed development. In resolving this particular issue, the Commissioner did not err in not making findings in relation to the planning or urban design evidence.

  7. As such, I do not accept either, first, that she “entirely put to one side more than 50% of the evidence” or that, second, the Commissioner has not properly attended to her duties to determine the proceedings. The Commissioner correctly decided an issue to which she was entitled to give determinative weight and was not required, having reached that conclusion, evidence that was extraneous to that issue or to make findings in relation to other issues that would not have impacted upon her conclusion. There is no error of law made out.

  8. Grounds 4 and 5 are not made out.

Conclusion

  1. For the reasons above, 278 Palmer has not made out any of its grounds of appeal. The appeal should be dismissed with costs.

Orders

  1. The orders of the Court are:

  1. Appeal dismissed.

  2. The appellant to pay the respondent’s costs.

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Decision last updated: 30 November 2020

Most Recent Citation
Cases Cited

13

Statutory Material Cited

5

278 Palmer St Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1012
Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147
Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102