Cobden-Jones v Woollahra Municipal Council
[2002] NSWLEC 2
•01/14/2002
Reported Decision: 118 LGERA 41
Land and Environment Court
of New South Wales
CITATION: Cobden-Jones & Anor v Woollahra Municipal Council & Ors [2002] NSWLEC 2 PARTIES: FIRST APPLICANT
Alison Cobden-JonesSECOND APPLICANT
Martin Jeremy WattsFIRST RESPONDENT
Woollahra Municipal CouncilSECOND RESPONDENT
Ercole Palazzetti Pty LtdTHIRD RESPONDENT
FOURTH RESPONDENT
William Dunleath Blackshaw
Rhonda Lynette BlackshawFILE NUMBER(S): 40052 of 2002 CORAM: Sheahan J KEY ISSUES: Judicial Review :- development consent - validity - assessment of development application against a Council resolution adopting "urban design guidelines" - status of such resolution - relation of guidelines to local environmental plan and development control plan - development standards - use of SEPP 1 objections - questions of "finality" of consent - advertisement of consent as time-bar to challenge - ultra vires - relevant and irrelevant considerations - misdirection - attribution of weight - discretion - costs
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 1994
Environmental Planning and Assessment Regulation 2000
Local Government Act 1993
State Environmental Planning Policy No.1
Woollahra Local Environmental Plan 1995
Double Bay Development Control PlanCASES CITED: Attorney General for the State of NSW v Quin (1990) 170 CLR 1;
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 ;
Bruce v Cole & Ors (1998) 45 NSWLR 163;
Carstens v Pittwater Council (1999) 111 LGERA 1;
Coles v Woollahra Municipal Council (1986) 59 LGERA 133;
Corkhill v Hope (1991) 74 LGRA 33;
Currey v Sutherland Shire Council & Ors (1998) 100 LGERA 365;
Darling Casino Ltd v NSW Casino Control Authority & Ors (1997) 191 CLR 602;
Fast Buck$ v Byron ShireCouncil (1999) 103 LGERA 94;
Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95;
Hewitt v Hurstville Council [2001] NSWLEC 294;
Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, 10601 of 1985, 2 June 1986);
Hortis v Manly Council & Anor (1999) 104 LGERA 43;
King v Great Lakes Shire Council & Anor (1986) 58 LGRA 366;
Lainson v Sutherland Shire Council (1998) 108 LGERA 1;
Lavender View Regency Pty Ltd v North Sydney Council (1999) 104 LGERA 255;
Legal & General Life of Australia Ltd v North Sydney Municipal Council & Anor (1989) 68 LGRA 192 and (1990) 69 LGRA 201;
Leichhardt Council v Minister for Planning [No.2] (1995) 87 LGERA 78;
Ligon v North Sydney Council (1996) 93 LGERA 23;
Londish v Knox Grammar School & Ors (1997) 97 LGERA 1;
Manly Council v Hortis & Anor [2001] 113 LGERA 321;
Memel Holdings v Pittwater Council [2000] NSWLEC 206;
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24;
Minister for Urban Affairs & Planning v Rosemount Estate Pty Ltd & Ors (1996) 91 LGERA 31;
Mison v Randwick Municipal Council (1991) 73 LGRA 349 and 23 NSWLR 734;
Norsmith Nominees Pty Ltd v Woollahra Municipal Council & Anor [1989] NSWLEC 14;
North Sydney Municipal Council v Parlby (10613 of 1985, Stein J, 13 November 1986);
Oshlack v Richmond River Shire Council (1993) 82 LGERA 222;
Parramatta City Council v Pestell (1972) 128 CLR 305 at 323;
Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319;
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330;
R v Hickman & Ors; Ex parte Fox and Clinton & Ors (1945) 70 CLR 598;
Re Drake and the Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634;
Rosemount Estates Pty Ltd & Anor v Minister for Urban Affairs and Planning & Anor (1996) 90 LGERA 1;
Scott & Ors v Wollongong City Council & Anor (1992) 75 LGRA 112;
Sericott Pty Ltd v Snowy River Shire Council (1998) 100 LGERA 71;
Sommerville v Dalby & Ors (1990) 69 LGRA 422;
Taperell & Anor v Randwick City Council (2000) 108 LGERA 309;
Transport Action Group Againt Motorways Inc v Roads & Traffic Authority & Anor (1999) 46 NSWLR 598;
Warringah Shire Council v Pittwater Provisional Council (1992) 76 LGRA 231;
Weal v Bathurst City Council & Anor (2000) 111 LGERA 181;
Winn v Director General of National Parks & Wildlife & Ors [2001] NSWCA 17;
Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46;
Zhang v Canterbury City Council (2001) 115 LGERA 373DATES OF HEARING: 10/12/2001-14/12/2001 DATE OF JUDGMENT:
01/14/2002LEGAL REPRESENTATIVES:
FIRST AND SECOND APPLICANTS
Mr P W Larkin (Barrister)
with Ms L Byrne (Barrister)
Spiegel & Associates (Solicitors)FIRST RESPONDENT
SECOND, THIRD AND FOURTH RESPONDENTS
Mr B J Preston SC (Barrister)
with Mr S Flannigan (Barrister)
Deacons (Solicitors)
Submitting appearance save as to costs
Blackshaw Lindsay (Solicitors)
JUDGMENT:
ALISON COBDEN-JONES
First Applicant
Second Applicant
v
WOOLLAHRA MUNICIPAL COUNCIL
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Introduction
1. The two applicants reside at 38 Cross Street Double Bay, which is next-door to the site proposed for the major redevelopment of the improvements on three adjacent lots, located at the interface between the commercial and residential “precincts” at the western end of the Double Bay shopping centre.
2. They have commenced these class 4 proceedings to challenge a series of five decisions made by the first respondent Council (“Council”) in respect of the proposed redevelopment. Declaratory and injunctive relief are sought.
3. The three other named respondents are associated with the redevelopment proposal, but, having filed submitting appearances, save as to costs, on 26 November 2001, they did not take any part in the hearing of the challenge.
4. The subject site is regularly defined in the evidence by giving the aggregated addresses of its current improvements, namely “36A-48 Bay Street”, Double Bay, but reference is occasionally made also to the address “1 Guilfoyle Avenue”. The subject site has, like much of Double Bay, what Mr Larkin called “complex geology”, and a “very high water table” (see T9 L45ff), calling for close attention to geotechnical or geohydrological matters. It is zoned Business General 3(a) under the local environmental plan (Woollahra LEP 1995 – “the 1995 LEP”), and has frontages to Bay Street, Cross Street and Guilfoyle Avenue.
5. The proposed mixed use is permissible with consent.
The challenges
6. Council resolved on 6 October 1998 to apply a set of “urban design guidelines” to the site and its redevelopment (“the UDG resolution”), and has on two occasions granted a development consent (“DC”) and upheld an objection under State Environmental Planning Policy No.1 – Development Standards (“SEPP 1”), in respect of the proposed redevelopment - firstly on 7 December 1998 (“the 1998 DC” and “the 1998 SEPP 1”), and then on 18 December 2000 (“the 2000 DC” and “the 2000 SEPP 1”).
7. The applicants challenge all five of these decisions, and their grounds are set out in comprehensive “Further Amended Points of Claim” (“FAPC”) dated 27 September 2001, to the detail of which I will return.
8. However, their principal claims are that:
(a) the 6 October 1998 UDG resolution is void , because it effects changes in the planning controls relevant to the subject site, without observing the processes, including public participation, laid down in or under the Environmental Planning & Assessment Act 1979 (“ EP&A Act ”), for the making or amending of local environment plans (“ LEP ”), and development control plans (“ DCP ”), and,
(b) in so “ subverting those statutory processes ”, the void resolution infects the four subsequent decisions dependant upon its application to the development proposal, by displacing planning controls which should bind the Council in that assessment (see generally T3).
9. The 1998 and 2000 consents are both challenged also on the basis that they are not “final” in terms and effect, and so offend the principle in Mison v Randwick Municipal Council (1991) 73 LGRA 349 and 23 NSWLR 374 (“Mison”), especially in respect of some geohydrological matters.
10. In respect of the challenges to the 1998 consent, which were included in the applicants’ case only on 27 September 2001, the Council pleads that “such claims are time barred by the operation of s 101” (formerly s 104A) of the EP&A Act (Points of Defence par 7, 26 November 2001). In response, the applicants assert that, in advertising the 1998 consent, Council did not properly define or identify the subject site – namely notifying it only as 1 Guilfoyle Avenue. Two affidavits from town planner Michael Ball (dated 5 and 6 December 2001) were read in regard to this aspect of the case.
11. In respect of the challenges to the 2000 consent, it should be noted that, at the relevant time, although there had been no change in the UDG resolution, there were in existence some draft amending documents, affecting the applicable 1995 LEP (draft amendment 30), and the Council’s most relevant DCP, which documents “sought to encapsulate some but not all of the matters referred to in the” UDG resolution (T5 L3-4), and to which Council had regard, along with the 1998 consent.
12. The parties eventually agreed upon the tender of some Council notices regarding those 2000 draft instruments, which are not proceeding (Exhibit A8 and T156). Mr Larkin made it plain that these documents were not before the Council at the time of any relevant decision.
13. It is worthy of note that the applicants base none of their claims on Wednesbury unreasonableness.
14. The Council continues to resist all challenges, and has also pleaded “discretion”.
The evidence
15. The hearing proceeded largely on documentary evidence. There were four volumes of agreed documents (Exhibit A1-Exhibit A4), the first two of them covering the “1998 events”, and the latter two, the “2000 events”. There was also an agreed volume of planning documentation (Exhibit A5), and an agreed volume of geotechnical material (Exhibit A6).
16. Various other affidavits were read, ultimately limited to the issue of discretion – Michael Ball 21 October 2001, Warwick Davies 24 October 2001, Laurence de Ambrosis 27 November 2001, and Geoffrey O’Loughlin 27 November 2001 - and the parties agreed on a statement of facts on those technical matters (Exhibit A7) in the following terms:
2. The works referred to in paragraphs 6, 11, 12, 13 and 14 of the affidavit of L P de Ambrosis and paragraphs 12, 18 and 19 of G C O’Laughlin (sic) can be carried out as referred to in those paragraphs.
The subject site, its environs, and the development proposals
17. The three lots adjacent to the applicants’ land are lots A, B, and C in Deposited Plan (“DP”) 338045 (Exhibit A3 fol 35).
18. The lot at the corner of, and addressing both, Guilfoyle Avenue and Bay Street (Lot “C”) is generally known as “36A Bay Street” or “Blackshaw House”, but it includes a component sometimes referred to as “1 Guilfoyle Avenue”. It currently presents as a two-storey (9.86m or 10m high) residential flat type building, built about 1934, and currently used mainly for offices for solicitors and real estate agents (Exhibit A3 fol 3).
19. The lot at the corner of, and addressing both, Bay and Cross Streets (lot “A”) is generally known as “40-44” or “40-48 Bay Street”. It was built about 1989 and currently presents as a three-storey (14.9 or 15m) commercial building, with basement carparking, retail/restaurant uses on the ground floor, and offices above.
20. Between the two, “38 Bay Street” (lot “B”), addressing only Bay Street, and, constructed in about 1938 as a residential flat building of three storeys (12.28 to 12.5m high), comprises nine units, three of which are currently used partially for commercial purposes.
21. Bay Street is often described as the main street of the Double Bay “village” (Exhibit A1 fol 4, and T28 L36). Cross Street and Knox Street are major retail streets. Guilfoyle Avenue becomes Knox Street when it crosses Bay Street.
22. The three current buildings on the subject site have a combined footprint of 1230m2 (or 85% of the land area), a gross floor area (“GFA”) of 3,600m2, and a floor space ratio (“FSR”) of 2.5:1 (Exhibit A3 fol 36).
23. In summary, therefore, the proposed development site is currently occupied by three 2-3 storey buildings, housing a range of residential, commercial and retail activities, with the retail uses housed mainly on the ground floor facing Bay Street, and commercial uses on the higher floors (see plan in annexure “A”, and photographs in annexures “B”, “C” and “D”, to affidavit of Michael Ball, dated 5 December 2001).
24. Both the applicants’ property facing Cross Street, and the property directly behind it facing Guilfoyle Avenue, are shown on various drawings as two-storey brick residences. Both have a common boundary with the subject site and they are the only properties which do so. Their shared rear boundary occurs behind 38 Bay Street.
25. Both the 1998 and 2000 development proposals relied upon consolidation of lots A, B and C into one site, and Council expressed no opposition to that course – indeed, consolidation was required by condition 56 of the 1998 consent, and condition 2 of the 2000 consent. The site would then be a trapezoid shaped block of 1447m2, on a north-south axis, practically level, being “of flat topography with a slight fall towards to the south” (Exhibit A1 fol 52) (at RL 2.75-3.25m or 2.6-3.3m) and with a 56m frontage to Bay Street, a 17m frontage to Cross Street, a 36.7m frontage to Guilfoyle Avenue, and a rear boundary length of 52.6m (Exhibit A3 fol 35).
26. Both the 1998 and 2000 development proposals were for demolition of the existing buildings to make way for a “mixed development”, on the aggregated site, comprising below-ground parking and services, ground-floor retail and commercial uses, and upper storeys of residential units (T21). An earlier proposal to redevelop only 36A and 38 Bay Street (DA 95/122) was withdrawn in 1996, and one for the same lots in 1997 (DA 96/196) was refused.
27. The 1998 proposal (DA 98/110) was for two floors of under-ground carparking (61 spaces), 5 to 7 retail outlets on the ground floor, and 23 three-bedroom units over four floors above.
28. The 2000 proposal (DA 323/2000) had the same storey configuration as 1998, but only 53 car spaces, 5 retail shops and a caretaker’s unit on the ground floor level, and 11 three-bedroom and 5 two-bedroom units above.
29. Other residences along Cross Street and Guilfoyle Avenue are of one to three storeys. Retail and commercial development on the opposite side of Bay Street commences with a four storey building. Guilfoyle Park is located south of the site, and on the opposite side of that park is retail/commercial development of four storeys and a number of one to three storey residences.
30. As the 2000 Statement of Environmental Effects (“SEE”) says (Exhibit A3, fol 37):
The site has obvious locational advantages for mixed commercial/residential development. It is located in close proximity to the commercial/retail centre, 200 metres from Steyne Park and the foreshore of Double Bay, 120 metres from Double Bay Primary School and 300 metres from New South Head Road which is a major public transport route.
31. The Council documents repeatedly refer to it as an “important and large” site (see T36 L43 and T37 L23).
Is the challenge to the 1998 consent statute-barred?
32. While dealing with the particulars of the subject site, including its correct address(es), it is both sensible and convenient to deal with the Council’s claim that the 1998 consent is now protected from challenge because it was publicly notified in the media (par 10 above), albeit that the site was advertised only for a property known as “1 Guilfoyle Avenue” (Exhibit A2, fol 763).
33. The subject site is shown on the DCP maps relevantly to include numbers 36A, 38 and 44 Bay Street, and even “36 Cross Street”, but the court cannot identify on them any reference to “1 Guilfoyle Avenue” .
34. The 1998 DA (Exhibit A1 fols 37ff) notified the site address as “36A-44 Bay Street”. The SEE also repeatedly referred to “36A-44”, and the owners’ consent (Exhibit A1 fol 41) refers to it as “36A, 38 & 40 Bay Street”. The Council acknowledged (Exhibit A1 fol 28) the DA as concerning “1 Guilfoyle Avenue, 38 Bay Street and 40-48 Bay Street”; notified and advertised the DA as concerning “36A-44 Bay Street” (Exhibit A1 fols 205-6), and so described the property also in the notice of determination (Exhibit A2 fol 751).
35. The address “1 Guilfoyle Avenue” is part of the premises generally known as, and more prominently identified as, “36A Bay Street” - in the photographs (especially No.2), in Michael Ball’s affidavit of 5 December 2001, “Blackshaw House 36A” is clearly displayed on the wall of the building as it faces Guilfoyle Avenue.
36. Where the address “1 Guilfoyle Avenue” was used in correspondence/documentation between Council and proponents, neighbours, etc, it was always used in a way supplementary or subsidiary to the Bay Street addresses, and the only time it was used in a “free-standing” way was in the public advertisement of the grant of the 1998 consent (Exhibit A2 fol 763). As Mr Larkin said of that advertisement (T88 L3-6):
Nowhere else in the documents does one ever find, ever find, a reference to 1 Guilfoyle Avenue, which is contended to be the whole of the site, except for here.
37. Most if not all of the singular or prominent references to such address upon which the applicants rely occurred after the advertisement of the 1998 consent (see Exhibit A5, T257-8, Preston submissions par 31 and footnote 19).
38. The court is of the view that the requirements of the EP&A Act (s 101, or its predecessor s 104A), and of the Environmental Planning & Assessment (“EP&A”) Regulation 2000 (cl 124, or cl 74 of the 1994 Regulation), have clearly not been met by such inadequate identification for the subject site. The EP&A Regulation has always required the subject land to be (clearly) described, and, in all the circumstances, briefly summarised above, no reasonable person could conclude that the description “1 Guilfoyle Avenue” was adequate for the subject site. See Sericott Pty Ltd v Snowy River Shire Council (1998) 100 LGERA 71 and cases cited therein (see especially at 82-84).
39. In those circumstances the court has no need to find this case to be within the exceptions to the operation of privative clauses as defined in cases such as R v Hickman & Ors; Ex parte Fox and Clinton & Ors (1945) 70 CLR 598 (per Dixon J at 615), Londish v Knox Grammar School & Ors (1997) 97 LGERA 1, and Darling Casino Ltd v NSW Casino Control Authority & Ors (1997) 191 CLR 602 (at 630).
40. I conclude that the applicants’ challenge to the 1998 consent should not be taken to be statute-barred.
This judgment
41. The court must, therefore, consider all of the applicants’ challenges, and, in doing so, will:
(1) set out some relevant provisions of the EP&A Act, the EP&A Regulation, SEPP 1, the 1995 LEP and the relevant DCP.
(2) trace the evidence of relevant events in 1998, including the formulation of the UDG, and Council’s consideration of the 1998 DA and SEPP 1.
(3) trace the evidence of relevant events in 2000, including the formulation of draft amendments to the relevant LEP and DCP, and Council’s consideration of the 2000 DA and SEPP 1.
(4) consider the challenges in more detail, including the competing submissions made by the parties.
The EP&A Act, the Regulation and SEPP 1
42. The objects of the EP&A Act, as specified in s 5, include the following two relied upon by the applicants:
(a) to encourage –
(i) The proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) The promotion and co-ordination of the orderly and economic use and development of land; …
43. SEPP 1 has the following “aims, objectives, etc” (cl 3):
This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those
standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.
44. By force of cl 5 it “prevails over any inconsistency between it and any other environmental planning instrument, whenever made”.
45. “Environmental planning instrument” is defined by s4 of the EP&A Act to mean:
a State environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument.
46. “Deemed environmental planning instrument” is also defined in s 4, but that term does not embrace a “development control plan”, which itself is not specifically defined in the EP&A Act. Section 72 of the EP&A Act, however, relevantly provides for “development control plans” in the following terms:
- (a) to provide more detailed provisions than are contained in a local environmental plan or a draft local environmental plan in respect of a part or parts of the land to which that plan or draft plan applies, or
(b) to identify development as advertised development, or
(c) to provide for the notification or advertising to the public, a section of the public or specified persons of any of the following:
(i) a development application for specified development (other than designated development or advertised development),
(ii) an application for the modification of a development consent for specified development (including advertised development but not including designated development),
(iii) an application for a complying development certificate,
or to provide that the relevant application does not need to be notified or advertised, or
(d) to specify criteria, in addition to any criteria that may be specified in the regulations, that is to take into consideration in determining whether or not to give an order under Division 2A of Part 6,
it may prepare or cause to be prepared a development control plan.
….
(2) The format, structure, subject-matter and procedures for the preparation, public exhibition, approval, amendment and repeal of such a development control plan shall be as prescribed.
- …
47. Part 3 (cl 16-25) of the EP&A Regulation 2000 (formerly cl 15-24 of the 1994 Regulation) deals with the preparation of DCPs, their form, public exhibition of and comment upon drafts, their approval, and their amendment and repeal. Clause 17 provides that a DCP “may provide for any matter for which a [LEP] may provide”. The approval process is entirely in the hands of the relevant council (cl 21), and a DCP may be repealed or amended by the making of a subsequent DCP (cl 22).
provide as follows:
6. Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.
7. Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.
49. “Development standards” are defined in s 4 of the EP&A Act as follows:
development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of –
(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point;
(b) the proportion or percentage of the area of a site which a building or work may occupy;
(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work;
(d) the cubic content or floor space of a building;
(e) the intensity or density of the use of any land, building or work;
(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment;
(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles;
(h) the volume, nature and type of traffic generated by the development;
(i) road patterns;
(j) drainage;
(k) the carrying out of earthworks;
(l) the effects of development on patterns of wind, sunlight, daylight or shadows;
(m) the provision of services, facilities and amenities demanded by development;
(n) the emission of pollution and means for its prevention or control or mitigation; and
(o) such other matters as may be prescribed.
The Woollahra Local Environmental Plan 1995
50. The aims of the 1995 LEP (Exhibit A5), as set out in cl 2(1) (fol 4), relevantly include the following:
(a) to replace all existing local environmental plans and planning schemes which apply to the land to which this plan applies with a single local environmental plan;
(b) to provide a comprehensive planning instrument that is clear and explicit but which provides flexibility in its application;
…
(i) to provide the framework for more detailed controls to be contained within development control plans.
51. The objectives, as set out in cl 2(2) of the plan (fol 6), include the following:
(l) in relation to excavation of land -
(i) to minimise any impact on the amenity of the neighbourhood;
(ii) to protect the natural foreshore areas including the visually and ecologically significant beaches, inter-tidal rock formations, vegetation, rock faces, shelves and outcrops;
(iii) to protect trees and significant vegetation and the native flora and fauna; and
(iv) to avoid potential damage to neighbouring public and private land and buildings which may result from the proposed excavation work…
introduces the development control tables, and cl 8(4) (fol 8) provides as follows:
The development control table for each zone must be read subject to the special provisions and heritage provisions in Parts 3 and 4 of this plan, respectively. In the event of an inconsistency between a provision of a development control table relating to a zone and a special provision or a heritage provision in Part 4 and 5 of this plan, the special provision or heritage provision shall prevail.
53. Mr Larkin relies on cl 8(4) to claim that the specific clauses upon which his clients rely, namely clauses 11, 18 and 25 “take primacy over everything else, and that includes the floorspace ratio control and the specific provisions relating to geotechnical and hydrological matters” (T17 L58-T18 L3).
54. The subject site is located within zone 3(a), the General Business “A” zone (see Exhibit A5 fol 9). Only drainage and roads may be carried out without development consent, and relevantly “residential flat buildings (other than mixed developments)” are prohibited. The zoning table provides that any development other than that which is prohibited or does not require consent will require consent (see Exhibit A5 fol 9). The 1998 and 2000 proposals for the subject site comply with the definition of “mixed development” in Schedule 1 (fol 32) as follows:
Means one or more dwellings (or a boarding house) within the same building as, or on the same allotment of land as, shops, commercial premises or any other non-residential use which is not prohibited in the zone.
(in part 3 of the plan) deals with floor space ratios in these terms (fol 19):
(1) A building (other than a dwelling-house) shall not be erected on land to which this plan applies if -
(2) If, on the density map, 2 floor space ratios are indicated for the same land -
(a) in respect of buildings on land within Zone No.3(a), the floor space ratio of any part of the building used for residential purposes shall not exceed the lesser of the 2 floor space ratios; and
(b) in respect of buildings on land within Zone No.3(c), the floor space ratio of any part of the building used for non-residential purposes shall not exceed the lesser of the 2 floor space ratios.
(3) Notwithstanding subclause (1), the floor space ratio of any building or buildings erected or proposed to be erected within the Double Bay Commercial Centre on land which is within Zone No.3(a) may exceed the floor space ratio provided in respect of that zone if -
(a) the floor space ratio of the building or buildings does not exceed 2.5:1, and
(b) provision, acceptable to the Council, is made for arcades, pedestrian linkages, public open space, setbacks, colonnades, child care centres, public toilets, community facilities or any other like purpose.
(4) The Council may accept the provision of the facilities referred to in subclause (3)(b) -
(5) When considering an application for consent to erect a building or use an existing building within the Double Bay Commercial Centre, the Council may, for the purpose of determining floor space ratio, exclude from its calculation of gross floor area the gross floor area of that part of the building intended to be used for a small professional theatre.
It is common ground that the “ base ” FSR for the subject site is currently 1.5:1 .
(also within part 3) deals now with excavation of land in the following terms (fol 21):
(1) When considering an application for consent for development involving the excavation of any land, the Council shall have regard to how that excavation may temporarily or permanently affect:
(a) the amenity of the neighbourhood by way of noise, vibration, dust or other similar circumstances related to the excavation process; and
(b) public safety; and
(c) vehicle and pedestrian movements; and
(d) the heritage significance of any heritage item that may be affected by the proposed excavation and its setting; and
(e) natural landforms and vegetation; and
(f) natural water runoff patterns.
(2) The Council may decline to grant such a consent unless it has considered specialist reports, including geotechnical reports, structural engineering reports, hydrology reports and dilapidation reports of properties which may be affected by the proposed excavation.
(3) Consent for an excavation may be granted when consent is granted for any other development proposal for the carrying out of which the excavation is necessary.
In 1998 the now operative provisions of cl 18 as set out above were in the same terms but were then numbered subclauses 2, 3 and 4. At that time cl 18(1) provided:
(1) The consent of the Council is required for excavation associated with:
(a) the erection of a new building;
(b) alterations and additions to an existing building;
(c) demolition of a building;
(d) the construction of an in-ground swimming pool;
(e) the construction of a retaining wall; or
(f) landscaping works involving terracing and ramping.
(also within part 3) deals with water, waste water and stormwater systems in the following terms (fol 24):
(1) The Council must not grant consent to the carrying out of development on land or subdivision of land to which this plan applies for the purpose of a habitable building unless it is satisfied that adequate water and sewerage services will be available to the land it is proposed to develop.
(2) The Council must not grant consent to the carrying out of development on land or the subdivision of land to which this plan applies for any purpose unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop.
is defined in Schedule 1 of the plan (see Exhibit A5 fol 32) in the following terms:
In relation to a building, means the sum of the areas of each level of the building, including –
and excluding –
(e) car parking to meet the requirements of the Council and any access to the carpark; and
(f) any area used or intended for use as a car parking station; and
(g) uncovered roof terraces.
59. It is appropriate at this point to make some simple comments about the contrasting language used in the clauses of the 1995 LEP, upon which the applicants rely (cls 11, 18 and 25):
(i) Clause 11 ’s FSR provisions are expressed in terms “ shall not be erected ”, but with facultative exceptions , in cl 11(3), (4) and (5), which provide that development “ may exceed ” the FSR so prescribed, in certain specified circumstances. It seems to be common ground that this provision is a “ development standard ”, amenable to the dispensatory power of SEPP 1, although some reliance was placed by the applicants on its prohibitory tone (c.f. Mr Larkin’s concession that prohibitions in DCPs have a different status from that enjoyed by those in LEPs – see T 155).
(ii) Clause 18 requires that Council “ shall have regard to ” certain matters and gives Council a “ may decline ” discretion in certain stated circumstances.
(iii) Clause 25 provides that Council “ must not grant consent …unless it is satisfied that adequate … services will be available ”, and/or that “ adequate provision has been made for the disposal of stormwater ”.
These matters of language will assume importance later in this judgment.
The Double Bay Development Control Plan
60. The Double Bay DCP (Exhibit A5 fol 114-145) was approved by Council in June 1995, and the DCP map (at fol 137) clearly indicates that the subject site is included in the commercial area of Double Bay to which the DCP applies.
61. The legend (on fol 136) indicates that the subject site should provide a 1.5m building setback from both Bay Street and the rear boundary. Areas where a greater setback is required are clearly delineated, and areas where colonnading from the property alignment is allowed are also clearly delineated on the DCP maps (fol 135-7). The subject site is not so delineated on those maps.
62. Apart from streetscape, the DCP also deals with height and envelope controls, and the bonus FSR requirements provided for in cl 11 of the LEP.
63. As the introduction to the DCP (fol 116) says:
The Double Bay Centre is to be a premier specialty retail and restaurant precinct of Sydney offering a relaxed, cosmopolitan atmosphere for local residents and visitors where the quality of the pedestrian environment and the image of Double Bay as a special place to meet is paramount …
In broad terms the strategy for Double Bay seeks to improve the shopping environment for pedestrians and encourage commercial growth and vitality within the defined limits. The Development Control Plan assists in the implementation of this strategy by expanding on the objectives stated in 3.0…
Both height limits and floor space ratios have been increased in the primary retail area… the application of bonus floorspace has been both qualified and quantified to provide clear guidelines on when, and to what extent, Council will accept the use of this provision.
The existing scale and cosmopolitan character of Double Bay are important characteristics of the centre and Council has sought to maintain these features with the introduction of a number of controls including an envelope control and a detailed advertising policy.
64. Section 3.0 (fol 117) deals with objectives. The general objective of the DCP is “To co-ordinate and control redevelopment in a comprehensive manner so as to achieve a functional, efficient and attractive centre”.
65. Section 4.1 deals with height controls, the aims of which are stated to be:
· to facilitate appropriately scaled development which has regard to pedestrian amenity, the impact of development on the amenity of surrounding residential precincts, and the character of the commercial area;
· to provide some incentive for redevelopment within the commercial area.
The DCP goes on to specify a height limit for Business General 3(a) zone of 15m.
66. Section 4.2 deals with envelope controls and their aims are stated to be as follows:
(a) to provide an appropriate scale of development addressing the street frontage which has regard to the prevailing patterns of the existing built form of the centre;
(b) to control overshadowing of public spaces so as not to unreasonably impact on their amenity.
67. Section 4.2 goes on to specify that development within the 3(a) zone must comply with the “build height plane” which “in effect … means that the facades of any storeys above the second storey are to be set back behind the building alignment so as to not extend beyond the line of the building height plane”. The subject site does not fall within any of the defined exception areas set out in s 4.2 (see fol 119), but the proposed development achieves a height of 17m and goes to four storeys before any setback.
68. Section 4.3 deals with bonus floorspace allocation (fol 120). The aim of the section is stated to be “to encourage good building design which incorporates community facilities or other features which may otherwise not be provided, in a manner which will not be detrimental to the scale of adjoining development”. In its terms the section goes on to provide comments and criteria which constitute “clear guidelines to both the Council and the developer on the use of the system to ensure consistent rational decision making” in an area “potentially subject to differing interpretations”:
4.3.1 General Comment
1. Bonus provisions should not be regarded as an automatic means of increasing floorspace. In fact, the application of these provisions is designed so that bonus floorspace is difficult to acquire unless some tangible public benefit is achieved. The determination of bonus floorspace will depend upon any such incorporated facilities satisfying the criteria outlined in 4.3.2.
2. A direct floorspace bonus is not granted for site amalgamation. However, it is implicit in the application for this section, that redevelopment projects incorporating site amalgamations will usually result in a form of development which more successfully achieves Council’s stated aim.
Maximum bonus floorspace for any development, however, will be governed by the application of the following pro-rata clause:In determining the extent of bonus floorspace, Council will examine the development against three (3) general criteria. These are:
1. The usefulness of the bonus facility provided on site or within the building to the general community.
2. The necessity or demand for such facility or facilities in the locality.
3. The effect the inclusion of a bonus facility or facilities has on the building’s bulk and form and the building’s relationship with the character of adjoining development.
In addition the cross-site linkage must be of demonstrable and significant community and pedestrian benefit in order to attract a bonus.
- Applicants attention is drawn to the fact that even where the maximum bonus floor area figure is applied, in accordance with this Clause, a full bonus floorspace ratio of 1:1 may not be achievable, dependent upon the type and extent of bonus facility provided.
69. The section then proceeds to give considerable detail, and, on the subject of colonnading and setback, it says (fol 122):
1. A bonus for front and rear setbacks and colonnading will only be granted where these are provided in the locations specified in clause 4.5 of the Development Control Plan.
2. A bonus is only granted for setbacks and colonnading at ground floor level. Although the building is merely complying with a “performance standard” the loss of valuable floor area at the ground level and the fact that not all development in the centre must comply with this performance standard is considered sufficient reason to provide a bonus.
3. For this bonus facility a simple pro-rata floorspace provision will be granted as follows:
‘For every square metre (1m 2 ) of site area used for colonnading or setbacks, three square metres (3m 2 ) of bonus floor area will be granted within the total F.S.R. limit for the site’.
70. Section 4.4 deals with setbacks. The aim is “to enhance the shopper circulation space and provide additional area for landscaping, street beautification and outdoor eating facilities” (fol 123). The table makes clear that it is only a setback in respect of Bay Street, south of Cross Street. So no bonus for colonnading applies to the subject site such as to enable a FSR of 2.5:1, by virtue of cl 11 of the LEP (fol 124). At the end of the table (at fol 125) the DCP says:
The development will, however, still be required to comply with the Building Height Plane …All setbacks and colonnading requirements are taken from the existing property alignment. Where colonnading is provided for, first and second floor levels may be cantilevered to the property alignment.
The UDG resolution and Council’s consideration of the 1998 DA and SEPP 1
Negotiations with Council
71. The UDG resolution emanated from discussions between the Council and architect then acting for the proponents of the redevelopment of the subject site, namely Mr Rohan Dickson of Dickson Rothschild Architects (“Dickson”).
72. Those discussions appear to have commenced in August 1997, culminating in the presentation to Council officers of a complete contextual assessment for the site and a draft of the scope and content of a set of design guidelines (see fol 317f of Exhibit A1). A further presentation of a draft set of guidelines occurred on 14 November 1997 and further meetings and correspondence resulted. Another presentation was made to Council officers and Councillors on 16 December 1997, and again on 5 February 1998.
73. In the letter submitting the first draft of the design guidelines, Dickson said (Exhibit A1 fol 1):
As discussed at our recent meeting, it is our preferred approach to establish a suitable development framework for the site, in consultation with Council, prior to any design taking place. The establishment of a suitable building height plane is important in this respect as it is the basis for development of a more detailed framework, operating within the objectives and principles of the Double Bay Development Control Plan.
74. The draft document and all subsequent submissions take on something of an advocacy tone and role, and, as Mr Larkin pointed out (T28), have some of the trappings of an environmental study, which might be prepared under Part 3 of the EP&A Act to precede the making of a new environmental planning instrument. As he says, the DCP, which had been in place since 1995, did not seek to impose a blanket solution on a wide variety of potential development situations, but sought to address individually every significant streetscape within the commercial precinct, dealing with every one differently (T28).
75. On 31 October 1997, Dickson wrote to the Council saying, inter alia (Exhibit A1 fol 17 cf fol 20):
We were delighted to hear of council’s support and satisfaction as to our approach, site analysis and proposed draft guideline. We now feel confident to proceed to the preliminary design stage but would appreciate written confirmation from yourselves that the proposed development guidelines as submitted are appropriate and sufficient to govern proposed development on the site.
We look forward to continuing an open and collaborative relationship in the preparation of our Development Application.We would propose meeting again with Councillors and Council officers in mid November to discuss and review our interim designs ahead of a formal Development Application submission.
76. In his letter of 17 November 1997 (Exhibit A1 fols 22-23) Dickson asked the Council to confirm that the “amended Draft Design Guidelines, will be the basis for assessing the suitability for any development application for the site”. Relevantly on 15 December 1997, Dickson asked the Council for access to the file on 44 Bay Street “with regard to the geotechnical information supplied as part of the BA” (Exhibit A1 fol 24). The respondents Blackshaw authorised the information sought, and previously available to Council, to be released.
Lodgement of 1998 DA
77. The 1998 DA was lodged on 21 April 1998 during the continuing negotiations (fol 37ff of Exhibit A1). The proposed development comprised demolition of the existing buildings, erection of mixed use building comprising residential apartments and ground floor retail to an estimated cost of $10.5 million. A colonnade was included, and the DA was supported by a report prepared in April 1998 by Arup Geotechnics, Ove Arup & Partners having been appointed structural engineers by Dickson. The Arup report reviewed earlier geotechnical investigation by Jeffery & Katauskas Pty Ltd (“J&K’) in 1988, and the proposed development (see fols 48ff).
The geotechnical issue(s) explained
78. In his opening address, Mr Larkin said (T39 L28-57):
The other effect is that one needs to seal the hole because ultimately the basement can’t be full of water and indeed can’t even be constructed whilst it’s full of water so at an early stage it’s necessary to seal the excavation so as to prevent water from entering it. That creates a damming effect, in effect water which would flow into ordinarily in an undisturbed form flow underneath the subject site through the sands has to be diverted sideways again with potential impact. The evidence is that the potential zone of influence for those type of effects is in the order of 50 metres and this report notes and indeed it’s apparent from the plan that your Honour’s already seen that there are existing structures approximately five metres from the southern boundary particularly the residence of the applicants in these proceedings.One of the relevant matters is that the evidence will show that there is ground water moving through this sandy subsoil and when one excavates into it you create a number of geotechnical effects hydrological effects. Specifically because the water table is very elevated when you excavate you will lower the water table around the excavation unless you take particular steps to stop that from happening and indeed the water will flow into the hole that you’ve created but of course you can’t work in a wet hole so you’ve got to pump the water out so particular steps have to be taken because when one lowers the water table the sand settles and that can have deleterious effects on surrounding buildings, that’s one effect.
79. The Arup report indicated that the construction of the basements was intended to reach the site boundaries. As Mr Larkin observed (T40 L16-26) he says:
What was approved we contend both here and in 1998 was a development right up to the very face of the boundary but it was a development that could not as a matter of technical ability be constructed without work on the adjoining land at least not without the most deleterious of effects because if you excavate there at the boundary then you will unless you seal matters cause draw down of the water table on the adjoining land with potential sediments for settlement problems of the buildings. And similarly if you construct a barrier right up to the boundary without any provision to prevent the damming effect you ordinarily will create quite an unacceptable impact on the adjoining structures.
80. Mr Larkin went on to point out that construction to the boundary (in accordance with the plans) could not be “done in a safe way for adjoining property unless special treatment is done to the land outside of the subject site and that indicates failure to have regard to a significant matter namely impact on adjoining lands” (T40 L32-36). Alternatively, Mr Larkin contends that if the conditions authorised amendment to the development to avoid that impact, the Mison principle would be infringed.
81. The Arup report went on to discuss ground conditions, foundation options, etc, and then to describe construction proposals in respect of the basements. It then drew the following conclusions (fol 57-58):
The top down construction has the following advantages:It is possible to construct a basement along the boundaries of the site for the proposed development and provide adequate lateral support for the neighbouring structures. Due to the presence of loose sands near the surface, the need to minimise lateral movements, and maintain positive buoyancy, a top down construction sequence with raft slab for the basement would provide an economic basement system.
· The effects of dewatering outside the site are kept to a minimum;
· There are no temporary ground anchors in neighbouring properties;
· Lateral movements are kept to a minimum due to the restraint provided by the ground floor slab at the start of construction;
· No permanent anchors or tension piles are required to provide positive buoyancy;
· Construction above ground floor level can start simultaneously with the construction of the upper basement slab.
82. Objectors to the DA expressed “serious concerns” and “genuine fears” in respect of possible geotechnical complications affecting dewatering.
83. Mr Larkin and Mr Preston explained to the court the hydrology and engineering of the proposal, and it would appear to be common ground that the method of dealing with the hydrology issues is feasible but, Mr Larkin contends, “not possible with the designs approved without work on adjoining lands” (T44 L17-18).
84. I will return to these matters in due course.
The 1998 SEE and the proposed UDG
85. The SEE submitted with the 1998 DA (at fols 62ff of Exhibit A1) noted (at fol 72ff) that the design and lodgement of the DA followed the collaborative development of the proposal between architect, client, Council staff and Councillors. After describing the process in some detail, the SEE opined:
This contemporary approach has become more widely accepted in present day practice over the traditional approach of setting precinct wide prescriptive standards such as floor space ratios and densities. The application of the traditional development controls have failed the community, have not achieved the desired outcomes and have resulted in the homogeneity of built form. They have been applied broadly across the city without any understanding of the urban qualities which give a place its character. In many cases, planning standards have been borrowed from another statutory jurisdiction and other countries without adequate evaluation.The approach is based on urban design best practice. Rather than simply applying a set of arbitrary and catch all planning standards, the approach has been to develop site specific guidelines through the act of design itself. The approach takes into account the key planning objectives and principles set out in the Double Bay Development Control Plan and interprets them against a detailed assessment of the urban context in which the proposed development is to be placed.
86. The SEE went on to refer to an attached draft of the UDG as then proposed. The SEE concluded “This Development Application represents the preferred option developed through this process” (fol 73). It then went on to describe the building proposal in great detail and to analyse it against the requirements of the then s 90(1) of the EP&A Act. It opined (at fol 91):
The proposal complies with the spirit, intent and letter of controls and guidelines identified within the Woollahra LEP, Double Bay DCP, Residential DCP, site specific guidelines and other such criteria;
…
The construction phase of the proposed development has the potential to affect, and be affected by, the existing high water table and sub-surface conditions existing on the site, and may have impacts on adjoining properties if not adequately mitigated. A geotechnical and hydrological report has been prepared by Ove Arup & Partners which identifies this potential and establishes mechanisms for the adequate mitigation of all potential impacts. This report accompanies this SEE;
and (at fol 93):
The bulk, scale, shape, size and height of the development exhibits a high degree of contextual fit, is consistent with Council’s intent for the area and with the site specific guidelines developed in coordination with Council officers for the site (see attached document 36A-44 Bay Street Urban Design Guidelines and Design Options):
· a maximum height of 18.1 metres;
· a cornice line height of 11.5 metres;
· an appropriate mix and arrangement of uses;
· an appropriate perimeter building form;
· appropriate treatment of corners;
· an appropriate roof form;
· appropriate massing, fenestration and articulation;
· appropriate and high quality materials, details and finishes; and
· concealment/integration of all mechanical equipment.
87. The SEE pointed out (at fol 100) that the Council is required to consider the circumstances of the case, the public interest and “any other prescribed matter”. The SEE refers to site specific guidelines as a circumstance of the case, and to the continued liaison with, and input by, both Council officers and elected representatives in the design process, arguing that the public interest “will be well served through the development of the site for purposes permissible in the 3(a) zone”.
The 1998 SEPP 1
88. The actual 1998 SEPP 1 objection is set out in the SEE (Exhibit A1, sec 7 of the SEE – fols 101-118).
Negotiations continue and the 1998 DA is amended
89. Further drafts of the UDG occur in the documentary evidence. Each is stated to be “site specific development guidelines for 36A-44 Bay Street, Double Bay, consistent with the objectives of the Double Bay Development Control Plan and LEP”. One draft (fols 300ff) refers to 14 months of negotiation commencing in August 1997, and to “discussions and refinements to the proposed building” since the lodgement of the DA in April 1998 (see fol 316) “to a point where council officers are now satisfied that the guidelines are encouraging a suitable form of development for the site”.
90. The negotiations continued (see fols 317-8).
91. On 12 August 1998 (at fols 349ff) Dickson amended his floorspace ratio calculations to arrive at a ratio of 2.24:1 for the amended 1998 proposal. An internal Council summary of a meeting on 14 September 1998 (at fols 405-406) referred to “procedure of consultation up until lodgement of DA” and “pre DA analysis by use of Urban Design Guidelines rather than the numerics of Council’s Codes”. The two Councillors present at that meeting and said to have “expressed support for the proposal”.
92. The architects held two meetings with the Council in the week prior to a letter from Dickson dated 11 September 1998, in which he expressed the view that it was important “that the Council has had the opportunity over the last 6 months to review in considerable detail the site-specific guidelines and the Development Application together, and make substantive positive input into both the guidelines and the design” (Exhibit A2 fol 432). The letter referred to further modifications of the proposal resulting in a reduction of the FSR to 2.98:1.
93. Submitted to the Council with a letter of 18 September 1998 was a paper on floorspace ratio and related issues (see fols 434ff). That paper claimed that public benefits flow directly from the provision of a colonnade (341.2m2), rear setback (71.8m2), and corner definition (412.4m2) making a total of 825.4m2. The paper then contended that “under the provisions of the Double Bay DCP and Woollahra LEP, the above identified public benefit items attract a floor space bonus of 3m2 for every 1m2 of area provided”. The paper also asserts other public benefits from “socially responsible design” totalling 431.95m2.
94. The original DA of 21 April 1998 was formally revised on 25 September 1998, but the estimated value of the project remained at $10.5M.
95. On 24 September 1998 Dickson’s company submitted “Updated Draft of the Urban Design Guidelines (edition three)” (Exhibit A2 fol 461) to the Council. Included in those documents was a revision of the FSR paper (see fols 498-499).
96. Exhibit A2 contains (at fols 502ff) internal Council documents regarding a “Double Bay Urban Design Study” which apparently did not proceed. The document in the exhibit is the draft brief for a consultant who was to conduct a broader investigation into groundwater conditions and the like.
The proposed UDG and the DA are reported to Council
97. The Assessment Officer reported to the Development Control Committee (“DCC”) of Council (at fol 511ff), to which committee had been delegated the responsibility for deciding the fate of the UDG and of the DA for the subject site.
98. The officer recommended the adoption of the architects’ UDG for the site, as amended, “as an acceptable method of interpreting Council’s planning controls”. He also recommended deferment of the consideration of the DA pending the submission of a revised proposal according with the UDG as amended and other requirements of Council
99. The officer noted as follows (at fol 512).
The architects commenced discussions with Council on 1 August 1997. The discussions related to a contextual design analysis to resolve the appropriate form and scale of proposed development on the subject site and as an acceptable means for interpretation of Council’s planning controls. The discussions were driven by the Architects and were based upon a study and survey of the locality. As a result of discussions with Council’s staff and Councillors, the architects developed Urban Design Guidelines as the appropriate method of interpreting the Double Bay Development Control Plan. This led to the development of three (3) design options. An amalgam of two of the options arose as the subject proposal.
100. The officer went on to set out the UDG in short form, and (at fol 515) he expressed certain reservations about the final submitted UDG document, and recommended some changes, e.g. “The overall building height should be generally limited to 15.0 metres …”; “setback of the northern end of the building from the western boundary by 1.5 metres at levels one and two and 3.0 metres at level three and the building being generally limited to a maximum height of 15.0 metres”; and “a maximum frontage height of 15 metres to both street corners”.
101. At fol 529 the officer opined:
In respect to the architect’s submissions on the availability of public benefit bonuses, with the exception of colonnading, the public benefit items are not considered to meet with the intent of Council’s Local Environmental Plan and as clarified by Council’s Development Control Plan for Double Bay. The features such as plant rooms, fire exits, storage rooms, ducting, lift shafts and lobbies are seen as features inherent in any good rationalised building design influenced by building regulations and Council’s design requirements. The originally proposed colonnading to all street frontages to a depth of 3.5 metres is, however, considered to be of public benefit, having regard to the objectives of Woollahra Local Environmental Plan 1995 and the Double Bay Development Control Plan, and a bonus of 1054.5m 2 (351.5m 2 x 3) should apply for the area provided (351.5m 2 ). Allocated setbacks from Bay Street have not been effectively applied with other redevelopment. Coupled with the setback bonus to the western boundary, this would generate a maximum floorspace ratio for the development of 2.33:1 (3366.75m 2 ). The original proposal would exceed this maximum by 1811.47m 2 i.e. approximately 54%). The revised proposal increases rear setbacks and reduces colonnading and would generate a potential public benefit bonus of 1239m 2 and thereby a maximum floorspace ratio of 2.36:1 (3409.5m 2 ). The revised development would exceed that figure by 1062.28m 2 (31.2%).
102. The officer proceeded then to deal with the SEPP 1 objection in respect of FSR and concluded (at fol 531):
Accordingly, the SEPP No1 objection could be supported subject to deletion of the storey at roof level, reduction in form and appropriate design of resulting necessary roof top features. As a consequence of these modifications the development would achieve a maximum floor space ratio of 2.76:1 (3998m 2 ).The revised development, however, exceeds reasonable limits of scale, having regard to Council’s planning controls. Whist the four storey presentation to both street corners is considered to be appropriate, the height, form and position of the roof top level is considered inappropriate, having regard to the building’s contextual relationship with neighbouring development, the site’s location on the perimeter of the commercial centre and the objectives of Council’s planning controls.
103. After dealing with the matters covered by various DCPs, the officer further concluded (at fol 540):
The Urban Design Guidelines, as amended, are considered to be an appropriate method of assessing the proposed development’s compatibility with Council’s planning controls. The proposal has received limited objection from neighbouring properties and has received a letter of support from the Chamber of Commerce.
Accordingly, consideration of the development application should be deferred pending the submission of a further revised proposal that conforms with the Urban Design Guideline, as amended by Council, the traffic and parking requirements of Council and several design issues, as stated in the recommendation.The revised development proposed, subject to reduction in height and enhancement of the terrace recess to level three (3), to the Bay Street frontage, is considered to relate appropriately with its urban context, particularly having regard to Council’s general planning objectives for the locality as contained in Council’s Woollahra Local Environmental Plan 1995 and the Double Bay Development Control Plan. The revised proposal provides a transitional relationship with the neighbouring residential properties and as has (sic) a reasonable amenity relationship with those properties.
104. In essence, the officer was recommending to Council that a lesser FSR (2.76:1) be adopted than was proposed in the amended 1998 DA and in the draft UDG, and the deletion of the proposed top floor.
Council’s consideration of the UDG
105. The DCC did not accept the officer’s recommendation in its entirety, but, instead, passed a resolution in slightly different terms (see fol 581). Faced with an FSR “range” relevantly of the order of 1.5-2.5:1, Council determined that the FSR for the subject development was “not to exceed 3:1”; and, whereas the architect had wanted a 19m height limit, and the officer 15m, the Council split the difference and chose 17m (T73 L35-42).
106. As this resolution by the DCC on 6 October 1998 (fol 579ff) is the key element in the applicants’ challenge, I will now set it out in full:
RESOLVED: PURSUANT TO SECTION 91 OF THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979
A. THAT Council resolve to adopt the Urban Design Guidelines set out below as an acceptable method of interpreting Council’s Planning Controls, for the subject site:
Activities
· Development should contain retail and residential activities providing a transition from the central part of the village retail activities to the adjoining residential activities, as well as contributing to the 24 hour life of the village.
· Ground floor pedestrian oriented retail space to extend the role and nature of Bay Street to the harbour.
- Access
· Pedestrian access should be available to all street frontages, particularly Bay Street and Guilfoyle Avenue.
· Vehicular access should be rationalised to a single point, at the Cross Street frontage.
· Facilities for the loading and unloading of goods should be available on site.
- Building Envelope –Bulk, Scale and Height
Building Alignment
· Buildings should be built to the property line along Bay, Guilfoyle and Cross Streets so as to contribute to the spatial definition of each street and the ability to maintain a continuous building line subject to appropriate visual relief by open designed recessed terraces, other than to both street corners.
· A colonnade of 3.5 metres width should be provided to all street frontages in order to provide pedestrian shade and shelter, increased area for shopper circulation and a more distinctive layering of space between the public and private realms.
- Cornice Line/Building Height Plane
· A Cornice Line/Building Height Plane height of approximately 12 metres is appropriate for the building frontage alignment and elevation with a 45 degree setback above this height, with the exception of both street corners and appropriate visual relief by open designed recessed terraces to other sections of the three frontages.
- Overall Building Height
· The building height should not generally exceed a maximum of 17.0 metres and any resulting necessary roof top features, above that height, being designed to minimise visual impact.
- Adjacent Properties
· A perimeter building form, with courtyard to rear, should prevail.
· The northern end of the building being setback 1.5 metres from the western boundary, at levels one and two and 3.0 metres at level three, with the maximum height of building not generally exceeding 15.0 metres.
· A boundary setback of 2.0 metres for the western side (Guilfoyle Avenue frontage) of the building, with 45o degree setbacks above the established cornice line is appropriate to minimise the impact of overshadowing on adjacent properties.
- Street Corners
· Building frontage height at the corner area of Bay Street and Guilfoyle Street North should be to an absolute maximum of 15 metres.
· Building frontage height at the corner area of Bay Street and Cross Street should be a maximum of 15 metres.
Building Design
Building Articulation
· The building massing should emphasise the vertical proportion of the Victorian terraces and adjacent building.
· The lower portion of the building from ground to first and second floor level should be well articulated and modulated to provide scale and shelter for people circulating around the building.
· The colonnade space should continue the rhythm of column spacing along the façade of the building.
· The proportion and detailing of the materials in the lower portion of the building should be of appropriate human scale.
- Fenestration
· Openings should be vertical in proportion emphasising the vertical character established by the column spacing.
- Roofs
· Roofs should be flat, screened by a parapet.
· Elevator overruns, mechanical plants and other services should be designed so that their visual impact is minimised.
- Materials and Finishes
· High quality building materials, finishes and details should be used to street frontages.
· Highly reflective wall and roof material are not permitted.
(The building height limit of 15m stated in the above section on “ adjacent properties ” was later acknowledged to be an error in recording Council’s resolution, and was altered to 17.0m as Council had intended (see correspondence in Exhibit A2 at fols 588-590)).B. THAT Council resolve to defer consideration of development application DA 98/110 for demolition of three (3) existing buildings, excavation and construction of a mixed retail and residential building on properties Nos 36A-48 Bay Street, Double Bay, pending the submission of a revised proposal that accords with the Urban Design Guidelines referred to in item A, above; the requirements of Council’s Traffic Committee, as determined on 6 October 1998 or thereafter; and the following design issues:
1. The building design being modified to accommodate retention of the Jacaranda tree to the rear of the adjoining property and the Avocado tree on the subject premises.
2. The design of the pergola to the recessed terrace at level three, off the Bay Street frontage, being minimised, to ensure the design benefit of the recess in the façade is maintained.
3. The floor space ratio of the development is not to exceed 3:1.
The 1998 DA and 1998 SEPP 1 proceed
107. Following the passage of the UDG resolution, which involved the simultaneous deferral of Council’s consideration of the 1998 DA and SEPP 1, further discussions took place between Dickson and the Council regarding them. Dickson’s drawings were revised and resubmitted on 27 October 1998 to better reflect the Council’s decisions of 6 October 1998, especially regarding maximum height. The three facades and the floor plans also were amended and the GFA and FSR re-calculated (see Exhibit A2 fols 606-612 and 615-617).
108. The revised plans were notified to nearby property owners, and reduced scale drawings were provided (fol 630-5). They were also reconsidered by relevant Council officers and a report was prepared for the 7 December 1998 meeting of the DCC (see fols 649-672 plus annexures), assessing the amended DA against the Council’s UDG resolution of 6 October 1998.
109. On FSR the assessment report commented (at fol 658):
The floor area of the revised proposal has been substantially reduced so as to comply with the requirements of Council’s resolution of 6 October 1998, Part B, Item 3, which stated a maximum floorspace ratio of 3:1. The reductions in floor area and height have benefited both the presentation of the building to the public realm, the contextual relationship of the development with development in the locality, and the relationship with the amenity of the neighbouring properties. Accordingly, the SEPP No 1 objection submitted by the architect to the non-compliance with the statutory floorspace ratio requirement is considered to be appropriate and should be supported.
110. The report concluded (at fol 662):
Accordingly, on the basis of the above assessment, it is recommended that Council support the SEPP No1 objection to the non-compliance with the statutory floorspace control and issue development consent, subject to conditions.The Council at its meeting of 6 October 1998 adopted a set of Urban Design Guidelines as an appropriate method of assessing the proposed development’s compatibility with Council’s planning controls. The revised development is considered to generally conform with those guidelines and therefore has an appropriate urban design and observes Council’s general planning objectives for the locality as contained in Council’s Woollahra Local Environmental Plan 1995 and the Double Bay Development Control Plan. The revised proposal also ensures a transitional relationship with neighbouring residential properties and maintains a reasonable amenity relationship with those properties.
111. Annexed to the report was a copy of the report (and its annexures) that had been submitted to the DCC on 6 October 1998 (fols 674-742).
112. The DCC resolved as follows on 7 December 1998 (fol 743-750):
RESOLVED: PURSUANT TO SECTION 91 OF THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979
…
C. THAT in approved Development Application No 98/110 and in the event of the applicant lodging an appeal against any conditions of the consent, the Council resolves to resist such appeals subsequently lodged having regard to the reasons for the conditions identified above and having regard to standard advising (a).
113. The comprehensive conditions are not reproduced here, but the following dealt with water-related issues: Nos. 14-21, 32, 46-47, 58-63, of which Nos. 14-21, 46-47 and 58-60 have been challenged by the applicants (See fols 743-50 and FAPC par 25).
114. A notice of determination issued on 7 December 1998 (fols 751-762), and the consent was advertised on 18 December 1998 (fol 763).
Council reviews its controls and drafts a 2000 DCP and amending LEP
115. Sometime during 1999 Council began preparing a DCP for “Double Bay Centre”, and on 13 June 2000 resolved to place on public exhibition an April 2000 draft (see Exhibit A5 fols 113A1-113A98). It is a long and detailed document covering many more issues than the UDG resolution. It included a stormwater strategy, and an increase in the FSR “range” (depending on bonuses) for the subject site (specifically nominated) from 1.5-2.5:1 to 2.5-3.0:1.
116. The draft DCP was based on an urban design study, apparently prepared by Hill Thalis (see Exhibit A5 fols 158-162). The Second Applicant, being an elected Councillor and an active local resident, appears to have played a proactive role in the consideration of this proposed DCP (see fols 170ff and 230), and possible amendment of the 1995 LEP (see fols 172-180 – Amendment 30), inter alia linking certain design criteria to the suggested increase in maximum FSR for the subject site from 2.5:1 to 3.0:1.
117. A report on the public exhibition of the April 2000 draft documents (fols 239A1-2) noted that the public experienced significant difficulty comprehending the built form implied by the control drawings in the draft DCP. Council resolved on 28 August 2000 to prepare a computer generated model and cross-section to clearly show what was envisaged. The exhibition period was then extended until 17 November and advertised accordingly. The officers noted at the conclusion of the report that a number of amendments would be made to the draft documents in response to submissions received before the matter was further considered by the Urban Planning Committee (see also T102 LL 50ff).
The 2000 DA, Council’s consideration, and grant of consent
118. Against the above background, a new DA for the same aggregated site (not a modification application) was lodged with Council on 17 April 2000 (Exhibit A3 fols 1ff), and eventually submitted to the DCC on 18 September and 11 December 2000 (see Exhibit A4 fols 226A-1ff and T96).
119. Between the 1998 DC and the 2000 DA, the EP&A Act was substantially amended, but the Council did not rescind or amend the UDG resolution, upon which the proponent’s new advisors relied (T224).
120. The 2000 DA was accompanied by a SEE prepared by Metroplan for the respondent Palazzetti (Exhibit A3 fols 28-80), describing the new proposal as “dictated by the specific” UDG (fol 45). The SEE asserted (Exhibit A3 fols 31ff) that the 2000 proposal “generally complies” with, and/or has only “minor departures” from, the DCP and the UDG. The value of the project had risen to $14M.
121. The 2000 DA’s design included a 3.5m wide colonnade and a 2m setback from the western boundary. A FSR “bonus” of 0.89:1 was claimed. The FSR of the proposal was 2.85:1, so a SEPP 1 objection was required in any event, despite that FSR being lower than the 3:1 in the UDG adopted by Council. The SEE described the UDG resolution as having “superseded” some of the DCP’s controls (fols 54 and 57).
122. The documents before the court do not indicate what occurred at the September meeting, but presumably the revised document (at fols 172ff) was prepared in the wake of that meeting. A memo dated 21 November 2000 from Professional Civic Design Services (“PCDS”) of Bankstown (Exhibit A4 fols 163ff) indicates that Council submitted the 2000 DA for their (external) assessment. PCDS examined architectural documentation by Palazzetti, survey information from Frank M Mason & Co, and a stormwater report by Timar Partnership Pty Ltd (“Timar”) (see fol 163). At fol 166 PCDS indicate that the submitted stormwater plans did not provide the minimum information required by Council’s Stormwater Management Code. However, it proceeded to make certain comments suggesting that amended plans would be submitted to comply with those code requirements.
123. PCDS recommended that those and other issues dealt with in its memo should be resolved prior to Council’s further consideration of the DA.
124. It is common ground that the Council had available in-house at the time of the 2000 decision, more stormwater expertise than was the case in 1998. A memo from Jacqui Hansen – by then Council’s Development Engineer Team Leader - dated 28 November 2000 (fol 168ff) referred to hydraulic services plans prepared by Timar in April 2000 for the proposed development and commented:
The plans are unsatisfactory. The consultant has not provided any form of on-site detention as required by Council’s Stormwater Management Manual. The plans do not comply with Council’s requirements. As this application is to be approved, I understand there is no time to ask the applicant to submit revised plans, in accordance with Council’s requirements. I have therefore attached a list of conditions, which can be inserted in the consent, detailing what is required.
125. The Hansen memo went on to set out ten comprehensive conditions and suggest a list of “standard conditions of consent” that should be imposed, and concluded (fol 171) “Development Application can be approved subject to conditions of consent”.
126. In the comprehensive report submitted to Council (see e.g. 11 December report at fol 226-A5 to 226-A6 under the heading “Stormwater Drainage”) the reporting officer commented:
Council’s Engineering Officer has raised no objection to the proposal, subject to conditions. The developer’s attention is drawn to the potential flooding of the basement levels, during periods of heavy rainfall, the likely property damage and the requirement to provide a comprehensive stormwater management plan with the submission of the Construction Certificate. (Refer to Conditions Nos 65-80 of the Recommendation).
127. In the immediately succeeding paragraph (on p 226A-6 under the heading “Engineering/Geotechnical”) it is further reported that:
Council’s Engineering Officer has raised no objection to the proposed methods of excavation and construction, as recommended in a report by consultant geotechncial engineers Jeffrey Katauskas (sic) Pty Ltd, prepared in 1988. (See Section 10.3 ‘EXCAVATION’ for more details and Refer to Conditions Nos 81-86 of the Recommendation).
128. The 2000 DA came before the DCC again on 11 December 2000, and, in accordance with a Council policy, Councillor Rundle moved for it to go before the full Council meeting on 18 December 2000. The DCC did not make a formal recommendation to the Council (see fol 172A-25).
129. In respect of FSR the report that went to Council said (fol 226A9):
Several policies and guidelines must be referred to in order to assess whether or not the SEPP 1 Objection should be supported. Even though some of the policies are not contained within the WLEP95, they are an extension of the LEP and provide the underlying rationale for the current FSR development standard and bonus provision. Proposed amendments to the FSR and corresponding policy documents are also included to gain a clearer understanding of the current direction that Council is taking with density control.The proposed floor space ratio is 2.95:1 (4261.31m 2 ) which exceeds the statutory floor space ratio development standard of 1.5:1 (2170.5m 2 ) and the potential maximum floor space ratio control of 2.5:1 (3617.50m 2 ), which is a bonus derived from a public benefit system. (See ‘Double Bay Development Control Plan’ below). The applicant submits that the proposed F.S.R is 2.85:1 (4122m 2 ). This calculation does not include the floor area on the ground floor comprising the garbage rooms, public toilets, electrical switch room and access thereto. The approved proposal has an F.S.R of 3:1 (4345.1m 2 ).
130. The UDG are referred to in these terms (at fol 226A-12):
Site specific Urban Design Guidelines were adopted by Council on 6 October, 1998. These guidelines were developed as a way of interpreting Council’s Planning Controls to arrive at an appropriate form and scale of development on the subject site. Along with several design guidelines to be discussed under ‘Policy Controls’ below, is the recommended F.S.R for the site. The acceptable maximum F.S.R. for the site is 3:1 (4341m 2 ) under the Urban Design Guidelines.
166. The applicants’ case depends upon the UDG resolution being more than a “policy” to guide Council’s decision making under Part 4 of the EP&A Act. Its provisions are “inconsistent” with both the LEP and the DCP, and Mr Larkin submits that any substantial “inconsistency” cannot be characterised merely as some “interpretation” of the binding planning controls (T72 L46-52).
167. As Mr Preston points out (submissions par 24), “inconsistency” or “repugnancy” arises only where a policy deals with a matter in a manner that attempts to override the Act under which the policy is made. He says that the applicants’ argument equates mere “difference” with “inconsistency” or “repugnancy” (T177 L26-28, T228f and Preston par 18), but in the respondent Council’s submission, the UDG do not attempt in any way to override the provisions of the LEP or the DCP. Mr Preston submits that the applicants have to elevate the status of the UDG beyond that to which they are entitled, in order to make the case that they equate to an exercise of a statutory power, and go on to show that that power was not properly exercised (see Mr Larkin at T54 L51-2).
168. As part of his submissions, Mr Larkin adopted the following summary analysis by Michael Ball of the differences between specifications in the UDG and DCP (affidavit 21 October 2001 par 12(d); see also FAPC par 10, and Table 5.1 at fol 122 of Exhibit A1):
Matter Guidelines DCP
Building alignment Nil setback to Bay, Cross Setbacks of 1.5 metres
and Guilfoyle Streets - required to all street
except at corners. frontages.
Colonnades To be provided at all To be provided in other
three street frontages, parts of Double Bay; if
and built to street provided for the subject
boundaries. land – setback of 1.5 m.
Envelope control Wall height of 12 metres Wall height of 2 storeys
to cornice line, then a (about 7 metres) then a
45 degree building height 45 degree building height
plane – except at corners. plane – including corners.
Corner heights Absolute height limit of Wall height of 2 storeys
15 metres to corners of (about 7 metres) then a
Bay and Cross, and Bay 45 degree building height
and Guilfoyle Streets. plane – including corners.
Height 17 metres “generally”, with 15 metres “absolute
higher rooftops to have overall height” above
minimal visual impacts. footpath.
Floorspace ratio 3:1 1.5:1 to 2.5:1 (bonus).
169. I accept the Council’s submission that, as admitted by the applicants, the UDG are neither an environmental planning instrument nor a development control plan. Accordingly, they do not depend in any way on the operation of Part 3 of the EP&A Act, and, accordingly, cannot be controlled by it.
170. I also accept the “backup” submission by Mr Preston that they are also not a “policy”, such as would attract the administrative law principles of “inconsistency”, or “fettering of discretion”. Corkhill v Hope (1991) 74 LGRA 33.
171. The term “policy” is usually not applied to a resolution in regard to only one site or one DA. Policies can deal with a wide range of subject matters, but they also do not purport to be LEPs or DCPs, and cannot include consideration of the particular circumstances of a case. See Re Drake and theMinister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 640-1.
172. The UDG are not of general application – they were developed from a specific planning analysis, with one particular site and one particular project in mind. If the court were satisfied that the UDG are a policy, the relevant statutory base for the making of such a policy would be found in the Local Government Act and not in the EP&A Act, and no offence to the Local Government Act, or any other Act including the EP&A Act, can be found. See Warringah v Pittwater, Re Drake (No.2) and T176.
173. Put in the vernacular, Mr Larkin’s case is that by “winning” the UDG resolution from the Council “the developer rewrote the rules and then complied with them” (T33 L15-16). The “rules” can be changed, or Council’s discretion enlarged, but only by “invocation of the rule making power provided for in Part 3. If one wishes to operate under SEPP 1 one must operate strictly in accordance with SEPP 1. There is no place for a process which is a little of both and in fact validly none of either …” (T58 L44-57. See also T161 L48-56). In this case “SEPP 1 was used as a means to authorise a development which could only be authorised in consequence of a change in the planning instruments” (T161 L26-28). The UDG resolution does not “interpret” the relevant controls, it “misconstrues” them (T60 L48-50).
174. Mr Preston’s case is that the developer, realising that the best result from the aggregated site required some relaxation of the relevant controls, chose to seek dispensations available under SEPP 1, rather than a rezoning. In expressing its (preliminary) views, a Council can act either through delegated officers, or as a collegiate body carrying resolutions, and not all resolutions need be in purported exercise of some specific statutory power (T167 L29-54). The UDG resolution came as the logical conclusion to a pre-DA consultation, through which developer and consent authority reached an “understanding” on some “fundamentals”, before costly design work was undertaken to prepare the DA itself (see T230). Expressing acceptance of such an “understanding” does not fetter the elected Council’s discretion when it comes to decide on the DA itself. In this case, it does not matter what the document/resolution/record of understanding is called. As the mention of “s 91” in the heading suggests, the UDG resolution was part of the process of Council’s considering a DA for a specific site (T174 L32-57), and it in no way “dispenses’ with fundamental compliance with the LEP and DCP. Effectively, by the same resolution, the Council deferred the DA unless and until the proposal was revised on the basis of the principles agreed upon by the Council (T175).
175. In reply, Mr Larkin contended that the UDG established new development standards, but the EP&A Act “covers the field” and requires the Part 3 process to be followed to achieve such an end. He equated the UDG’s dispensations as to setback, height and FSR to redefining “mining” as “forestry” (T247 L57) – the resolution “in terms”, he submitted, “says we will interpret X to mean not X” (T248 L7-8), and that is “legally impermissible” (T248 L47-48), because it is inconsistent with the requirements of the statutory scheme (T247).
176. In the court’s view, the UDG is a simple resolution of a collegiate body consolidating in one document the outcomes of a detailed and protracted series of pre-DA discussions between the proponents of the development and the relevant consent authority. Reacting to that document from time to time as it evolved, including by expressing collegiate views in resolution by Council, is a relevant and legal part of the Council’s discharge of its ongoing duty to control development – see s 91 of the EP&A Act. In that sense, the UDG are merely the product of the Council having accepted, in general terms, a site specific design analysis, prepared basically by the proponent’s architect and detailing the site’s constraints and opportunities.
177. There is nothing illegal in a proponent or its advisors setting out to obtain some dispensation from the statutory controls by the use of a well-founded SEPP 1 objection to the Council, in the case of controls in a LEP, arguing that the underlying objects and purposes of the development standards affected are satisfied, even if the proposed development does not strictly comply with them. That type of exercise is the essence and the purpose of SEPP 1, and obviously must occur on occasion during pre-DA consultations. A Council can dispense a proposal from the requirements of a DCP by carrying a simple resolution, and has the right and power to adopt some policy to guide or structure a particular exercise of its discretionary powers under the Act (T176 and Norsmith Nominees). That is what Council did here.
178. The mind of the Council is as validly expressed in such a resolution, as it is in resolutions passed during the processing of a draft LEP, which may, as in Legal & General Life of Australia ltd v North Sydney Municipal Council & Anor (1989) 68 LGRA 192, be properly considered in the assessment of development decisions before the plan is made.
179. The court can find no grounds upon which to declare the UDG resolution invalid.
The law regarding the use of SEPP 1
180. SEPP 1 permits ad hoc departures from development standards in LEPs – it does not facilitate their amendment or repeal. Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 101.
181. The court prefers the submissions of Mr Preston in regard to the use of SEPP 1 (see pars 35ff of his written submissions). As he summarised it (par 35):
SEPP1 permits a consent authority to grant consent to a development application for a development which does not comply with a development standard where:
(a) the consent authority ‘is satisfied’ that a written objection made under SEPP1 is well founded (cl 7 of SEPP1);
(b) the consent authority ‘is of the opinion’ that granting of consent to that development application is consistent with the aims of SEPP1 as set out in cl. 3, namely to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case:
(i) be unreasonable, or
(c) a consideration of the matters in cl.8(a) and (b) of SEPP1 supports the upholding of the SEPP1 objection.
(d) the consent authority is satisfied, as a matter of discretion taking into account such of the considerations under the former s.90 and current s.79C of the Environmental Planning and Assessment Act 1979 (‘the Act’) as are relevant to the development standard, that the dispensational power ought to be exercised in the circumstances of the case.
182. In determining a SEPP 1 objection, a Council is not bound only to the matters raised in the objection itself. Norsmith Nominees.
183. Mr Larkin relies very heavily on the decision of Lloyd J in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46. Mr Preston does not argue against the correctness of that decision, but rejects the suggestion that it limits the grounds upon which a consent authority can be satisfied that a SEPP 1 objection is well-founded to only the ground that the underlying object or purpose of the development standard has been satisfied. Mr Preston argues that Lloyd J’s citation of Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, 10601 of 1985, 2 June 1986) “speaks against any such limitation” of his own decision, as Cripps J acknowledged that satisfaction of the underlying object or purpose of the development standard was generally a way in which an objection may be well-founded, but not the only way. Hence, Lloyd J’s suggested approach (in par 26 of his judgment) cannot be held to be an exhaustive statement of the approach which a consent authority must always take in exercising its discretionary power under cl 7 of SEPP 1. See also North Sydney Municipal Council v Parlby (10613 of 1985, Stein J, 13 November 1986, at pp 4-8).
184. The following extract from Hooker Corporation was quoted also by Talbot J in Memel Holdings v Pittwater Council [2000] NSWLEC 206 at par 10, as “the classic summary of the approach to be taken when considering a SEPP 1 objection”:
It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the Court has urged a generous application of SEPP No.1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression circumstances of the case, it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. …Furthermore it is now established that although the discretion conferred by SEPP No.1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.
185. As Cripps J also observed in Legal & General Life, at 203-4, in circumstances in which his comments were expressly approved on appeal - see (1990) 69 LGRA 201, at 203 and 210:
The discretion vested in councils under SEPP No 1 is wide and, subject to limitations to be found in the instrument itself and in its relation to the Environmental Planning and Assessment Act, is unconfined. The express limitation is that the council must be of the opinion that the objection is well founded and the grant of consent is consistent with the aims set out in cl 3 of the policy. The implied limitation is that the discretion must be exercised by reference to planning considerations the width and generality of which is to be found in s 5 and s 90 of the Environmental Planning and Assessment Act. The above interpretation of the width of the discretion derives essentially from SEPP No 1 itself, the validity of which was not challenged. Moreover, I can see no reason in principle why the discretion should not be wide. The purpose of SEPP No 1 is to provide flexibility in the decision making process. Parliament has entrusted to councils the function of administering some of the planning laws of the State. SEPP No 1 is simply a planning tool designed to improve the decision making process. Furthermore, it should be remembered by those who, apparently, believe that councils should not be entrusted with such a wide discretion that the effectiveness of the exercise of the council’s discretion is itself subject to limitation. For a consent under SEPP No 1 to be valid, it requires the concurrence of the Director of Planning. In the present case, concurrence was given under delegated authority and neither the delegation nor the exercise of the power has been challenged.
186. The interaction of Hooker Corporation, Memel, and Winten was recently discussed by Bignold J in Hewitt v Hurstville Council [2001] NSWLEC 294, and I am fortified in the views I have reached by His Honour’s analysis in that case.
187. The other grounds or tests that might be applied, beyond that found most relevant in Winten, include (Preston par 43, and T184-5):
(a) the underlying objective or purpose is not relevant to the particular development proposed (which would be another way in which strict compliance with the development standard would be unnecessary),(see SCMP Properties Pty Ltd v North Sydney Municipal Council unreported, 10398 of 1982, 15 April 1983, Bignold J, p34).
(b) the underlying objective or purpose would be defeated or thwarted if compliance was required (which would be another way in which strict compliance with the development standard would be unreasonable) (see Hooker-Rex Estates v Hornsby Shire Council, unreported, 10506 of 1982, 27 July 1983, Bignold J, p 18).
(c) the development standard has been virtually abandoned or destroyed by Council’s own action, making strict compliance quite pointless (which would be another way in which strict compliance with the development standard would be unreasonable) (see North Shore Gas Company v North Sydney Municipal Council, unreported, 15 September 1986, Stein J).
(d) the development standard itself is unreasonable or unnecessary. (see Fast Buck$ at 97).
188. The consent authority’s SEPP 1 discretion is very wide. It is expressed in subjective terms suggesting that the consent authority must be satisfied or of the opinion that the matters specified in cl 7 exist. Reasonable minds might differ on the most appropriate course of action, but unsound opinions may not be so unreasonable as to be upset, and the court must not usurp the discretion of councils which were statutorily appointed by Parliament to make the relevant decision. Attorney General for the State of NSW v Quin (1990) 170 CLR 1, at 37; Parramatta City Council v Pestell (1972) 128 CLR 305, at 323. The discretion is confined only by the limitations found in its own terms and in its relation to the EP&A Act. Legal & General Life.
189. Furthermore, as Mr Preston pointed out (in pars 50ff), the applicants cannot discharge the onus of proving that the collegiate mind of the Council was affected by legal error merely by proving that a document lodged with the Council, such as even the SEPP 1 objection, may contain an error, including an erroneous approach to SEPP 1. The applicants must find an error in the collegiate mind of the Council, not in the author of the material the Council considered, unless that material was specifically and erroneously adopted. A Council may go beyond the grounds stated in a SEPP 1 objection in considering whether or not to uphold it. The Council has to address itself to the conditions of the relevant clause and to form the opinions required by SEPP 1.
190. There is no evidence to satisfy the court that on either occasion the Council did other than make the appropriate assessment required by SEPP 1, rather than a general merits assessment of the development. There is ample evidence that the Council considered all the relevant issues on a number of occasions over a long period of time, and the court is not satisfied that Council either misdirected itself or took into account irrelevant matters in either 1998 or 2000.
191. The challenges to the two SEPP 1 decisions have not been made out.
Do the consents offend the principles in Mison?
192. The applicants allege that certain conditions of consent (see pars 25 and 41 of FAPC) infringe the principles in Mison.
193. The consent in Mison was held not to be a valid consent, or a consent to the particular application, because significant matters, notably the height of the building, were delegated for later determination, with the result that it was possible that such further determination would significantly alter the development for which the DA had been made.
194. Mison must be read and applied in accordance with the decisions of the Court of Appeal in a series of cases, culminating lately in the decision in Winn v Director General of National Parks & Wildlife and Ors [2001] NSWCA 17 (see pars 15-19 per Spigelman CJ). See also Scott & Ors v Wollongong City Council & Anor (1992) 75 LGRA 112 at 118), and Transport Action Group Against Motorways Inc v Roads & Traffic Authority & Anor (1999) 46 NSWLR 598, at 628-34 per Mason P.
195. Mison is not authority for the proposition that the leaving of any issue at all for further determination, or the leaving open of the possibility that a further determination may alter the development in some respect, renders the purported consent invalid. The possibility of alteration is sufficient, but it must occur in a significant respect (see T215-216).
196. The courts have consistently upheld as valid any conditions which maintain a certain degree of flexibility to assist in making the consent operate practically, effectively and efficiently (see Preston par 123, and the cases cited in his footnote 126, e.g. Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 228-231 per Stein J, and Hortis v Manly at 74-77).
197. As held by Stein J, and upheld by the Court of Appeal, in Rosemount Estates Pty Ltd & Anor v Minister for Urban Affairs and Planning & Anor (1996) 90 LGERA 1 at 38, and Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd & Ors (1996) 91 LGERA 31 at 94-6 per Cole JA, one must look to the core purpose of the development and the consent to test if that core development may be altered in any fundamental respect by addressing the requirements of the condition. In this case the core purpose is erection of a building of certain dimensions. Attention to various hydrological matters (even installing re-injection wells next door) will not alter that building (at least not in any significant or fundamental respect).
198. The nature, extent and fundamental characteristics of the project in this case will be unchanged by the carrying out of the conditions, which in both the 1998 and 2000 consents – but in more detail in the latter – require submission to, and approval by, Council of :
(a) “ plans ” for such things as on-site detention, pipe systems, dewatering arrangements, connections to sewer and water systems, stormwater management and sediment/erosion control; and/or
(b) “ reports ”, or certificates by experts, on hydrology, dilapidation, and geotechnical issues at various stages of the project; and/or
(c) DAs for some of the works in (a).
199. The relevant conditions are too extensive to reproduce in this judgment, but copies have been taken from the voluminous exhibits, and will remain in the court file.
200. The court has come to the view that none of the conditions challenged in this case leave for later determination any issues of real significance to the approved development. Such issues as may be the subject of further consideration and determination are truly ancillary to the core purpose of the consent, and any further determination is not likely to cause the development to be altered in any fundamental respect or to become a significantly different development.
201. The Mison challenges to both consents must fail.
Other challenges
202. Having decided to dismiss the major challenges, many of the others automatically fail, but the court should make some comments about them.
Consideration of the DCP
203. Council is the author of its DCPs – they are not delegated legislation like environmental planning instruments – and it may depart from their controls, but only after it gives close attention to their provisions (Ligon v North Sydney Council (1996) 93 LGERA 23 and Zhang v Canterbury City Council (2001) 115 LGERA 373). It has no duty to give reasons, nor provide a complete and accurate documentary record of its consideration, as does the court. It does not operate “in a vacuum”, considering each individual item of business in isolation from all other events, issues and knowledge (see T198-199, Preston par 86, and cases in footnote 82). The court assumes the undocumented local and general knowledge and relevant expertise of the Council and its officers (see Parramatta v Hale at 346; Sommerville v Dalby & Ors (1990) 69 LGRA 422 at 429; and Hortis v Manly at 63).
204. The critical factor in the decisions in Zhang was that the Commissioner reformulated the issues in the appeal before him, and deleted one altogether from his consideration. In this case the DCP was a relevant matter, but was not the only one, and significant weight need not necessarily have been given to it. Attribution of weight is a question of fact for the decision maker, and not reviewable (in the absence of a manifest unreasonableness claim). Randwick Municipal Council v Manousaki (1988) 66 LGRA 330. There is no authority for the proposition that more weight must be given to the DCP than the UDG in this case.
205. The DCP was covered comprehensively in material placed before Council on both occasions, and I can find no evidence of any failure by Council to consider it, nor of any misattribution of weight to relevant matters on either occasion.
206. It is true that the DCP did not envisage colonnading at this location, and hence did not allow for any FSR bonus for providing any (T253 L27-38), but that does not create any enforceable “prohibitions” on providing colonnading or allowing a bonus. A proposal being in breach of the numerical requirements of the DCP is but one relevant matter for the consent authority to consider. Such matters were within the Council’s discretion, and it determined its preliminary thinking on such matters when it adopted the UDG.
LEP cl 18
207. Clause 18 provides that Council have regard to the impacts of excavation and then consider if specialist advice were necessary. It is a facultative power and not a requirement.
208. At the time of the 1998 consent, Hansen was not at the Council, but Council had before it specialist hydrological advice (J&K, Arup, etc), was entitled to rely on such expert material, and imposed relevant conditions on its consent.
209. Regarding the 2000 decisions, in which Hansen participated, Mr Larkin says of the report which went to Council (T97 L25-48 ):
But the second point is the council having been misled into thinking that there were no concerns about these matters then it directly lifts the conditions that we see here and puts them into the consent …… the report which goes to the council quite wrongly states that there are no hydrological stormwater objections raised by council staff. So the report which goes to the elected councillors simply fails to draw to their attention that the relevant officer has in the clearest terms said that the plans are unsatisfactory and don’t comply with the council’s requirements and that gives rise to a Parramatta Park v Hale type problem for the consent.
210. Hansen, according to Larkin, “plainly thought that there should be such a report and … it should be submitted ordinarily before approval …. The Council is told there is no objection, and it then just imposes the conditions” (T98 L6-12). He submits that she thought she had no choice but to propose conditions, and Council adopted her error. Council did not turn its mind to the question cl 18 requires it to answer, namely whether or not to exercise the power to require the provision of the plan; it simply imposed the conditions without considering whether or not to exercise the power in cl 18.
211. Mr Larkin’s further (Parramatta v Hale) point is that the officers preparing the documents for the Council or the DCC should have accurately recounted what, in fact, the specialist officer had said, and not just accurately recounted the conditions that she wanted included if the matter were to be approved (see T105 L43-59).
212. Mr Preston points out that cl 18(2) of the LEP was, in fact, addressed by the report (at fol 226A-18), which said “the issues relating to excavation, as contained in Woollahra Local Environmental Plan 1995, Clause 18(2), appear to have been satisfactorily addressed”. In fact, Hansen did seek external advice in relation to the very matter at issue (see fol 163, the PCDS memo). That advice suggested that the missing information be obtained before further consideration (see T110), but the officers were happy to proceed by way of the comprehensive conditions Hansen had suggested.
213. The court attaches no concern to evidence of Hansen’s expectation that the DA was to be approved – the 2000 DA was generally seen to be an improvement on the 1998 DA, which the Council had approved, and any technical reservations she had were covered by the suggested conditions. Council did not adopt the recommendations blindly, as the notes of the debate show.
LEP cl 25
214. Clause 25 is a pre condition to the exercise of the approval power (see again Hortis v Manly, and Manly v Hortis).
215. The applicants submit that it is not sufficient for Council to refer to the clause; Council is obliged to explore the relevance and application of cl 25 to the relevant subject development before granting consent (see Currey v Sutherland Shire Council & Ors (1998) 100 LGERA 365 and Weal v Bathurst City Council & Anor (2000) 111 LGERA 181 at 201ff per Giles JA), and that Council did not turn its mind to the mandatory requirement of cl 25, that the Council must not consent unless it is satisfied that adequate provision has been made regarding the stormwater.
216. Council’s report certainly did not completely explore, to a conclusion, the hydrological issues in this case, but merely recommended the conditions – an approach Mr Larkin says is not open to the Council in terms of cl 25 (T254 L33-38) – and the Council’s collegiate decision adopted that error by incorporating the conditions into the 2000 consent.
217. The Council knows this site – it has been developed and serviced since the 1930’s. It imposed its apparently routine conditions to ensure appropriate servicing outcomes from the grant of consent; those conditions do not offend Mison, and the court is satisfied that the relevant issues were squarely before the Council on the occasion of each grant of DC.
Did Council consider irrelevant matters?
218. The principal submission of the applicants on this point is that the UDG, being invalid, were an irrelevant consideration for the Council when granting consent in either or both of 1998 and 2000. Having found the UDG not to be invalid, this challenge fails. They could not be irrelevant. Carstens v Pittwater.
219. The applicants also challenged the Council’s having taken into account possible amendments to the LEP and the DCP, as well as the 1998 DC, when it came to consider the 2000 DA. The decisions of the Court of Appeal in Legal & General Life and Fast Buck$ not only held that documents of lower status than environmental planning instruments – a draft LEP and its background papers in Legal & General Life, and a “pending rural residential study” in Fast Buck$ - were not only “not irrelevant’ but were, indeed, “relevant” considerations for Council. Mr Larkin appeared to concede most of this issue (see par 133 above), and the earlier grant of a DC must be a relevant “circumstance of the case”.
Did Council misdirect itself?
220. This challenge was based also on the challenged UDG, and they having been held to be valid, it must fail.
Did Council fail to consider relevant matters?
221. The material before the court shows that Council had before it all potentially relevant matters, and there is no evidence of any failure to consider them. It is not necessary for the Council to recite all it did in performing its task. Norsmith Nominees.
Is the development prohibited?
222. The applicants’ contention that the development is prohibited by reason of cl 11 of the LEP, could succeed only if the challenge to the Council’s SEPP 1 decisions was upheld, Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95, at 102. The court has rejected those challenges and, accordingly, this challenge also fails.
Is the consent invalid because it may impact on additional land?
223. It was suggested during argument that neither consent could be implemented and carried out because access is required to, and work needs to be carried out on, adjoining land, including that of the applicants. The contention is that as that adjoining land was not the subject of the development application and a relevant owner’s consent, the DCs are invalid.
224. There is some evidence to suggest that work may be required on other land, but the evidence admitted on the question of discretion (and see Exhibit A7) would seem to indicate that it is not necessary for access to be obtained to, or work to be carried out on, adjoining land. All the work now envisaged can be accommodated on the subject site with a very minor setback of 0.25m for the new basement walls. A modification to the DC to accommodate any such setback would not fail on the grounds that the consequent development was substantially different from existing consent (see Lavender View Regency Pty Ltd v North Sydney Council (1999) 104 LGERA 255).
225. In addition, King v Great Lakes Shire Council & Anor (1986) 58 LGRA 366 is authority for the proposition that the requirement for ancillary development to take place on other land does not invalidate the consent for the project outlined in the primary DA. Also, in Rosemount on appeal (91 LGERA 31 at 36), Cole JA specifically held:
The fact that a condition is imposed upon a developer to do work on the property of another does not mean that the condition is invalid; it may not be able to be performed but that and any consequences flowing from non performance are different matters.
Conclusion
226. It is clear, from what I have said, that the court is not satisfied that any of the applicants’ challenges should be upheld, except that to the s 101 defence.
227. The proponents of the subject development conceived of the prospects and potential of aggregating the three existing projects facing Bay Street, and achieving a desirable development for that area of Double Bay. The result of the consideration of those prospects and opportunities in liaison with Council’s officers was an agreement by the Council to a set of parameters, which came to be referred to in rather grandiose terms as “Urban Design Guidelines”.
228. For the court to hold that a resolution, such as that carried by the Council in this case on 6 October 1998, amounted to a usurpation of, or subversion of, the plan-making powers in Part 3 of the EP&A Act would seem to invalidate any decision by Council or the court to approach a major project by requiring/enforcing something in the nature of a strategy or masterplan (falling short of an environmental planning instrument). I do not think the EP&A Act or the cases on it contemplate that outcome, and I also do not think that it would be in the public interest to deter such pre-DA negotiations.
229. Putting Winten in context, the court can see no error of law in the way in which the Council approached the assessment of the SEPP 1 objections made on each occasion. Those objections having been validly upheld by the Council, it does not appear from the evidence that in allowing itself to conclude that consent should be granted on both occasions, the Council was guilty of any misdirection. Nor is there evidence that it either failed to consider a relevant matter, or considered an irrelevant matter.
230. The UDG, having been agreed upon in principle by the Council, were not legally irrelevant, but were permissible considerations. They can properly be taken into account, but did not necessarily have to be taken into account. The UDG being both valid and not irrelevant, no misdirection can result from their being taken into account.
231. The Council on several occasions demonstrated an independence of its collegiate mind, and did not “blindly” adopt the recommendations of its officers. Nor did it breach in any way the EP&A Act, the Regulation or the LEP.
232. I have concluded that the class 4 application must be dismissed.
Discretion
233. Having concluded that the applicants’ challenges should be dismissed, no question of discretion arises. The question was argued to some extent (see Preston pars 142-144, T233 and T258), but the court has reached no concluded view on the exercise of discretion in the event that my decision on the challenges is incorrect.
Costs
234. In class 4 proceedings, costs generally follow the event, and, as the applicants have been almost completely unsuccessful, the Council is prima facie entitled to an order for costs. However, as the question was not fully argued, and the absent respondents were active in the proceedings until just prior to the hearing, and submitted only to orders other than costs, the court will formally reserve the question.
Orders
235. The formal orders of the court will, therefore, be:
(1) Application dismissed.
(2) Costs reserved.
(3) All exhibits are returned, except Exhibit A7, and subject to the court retaining on file copies of Exhibit A2 fols 743-750 and Exhibit A4 fols 257-285 (the conditions attached to the two consents).
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