Ecological Centre Pty Limited v Council of the City of Sydney (No 2)

[2011] NSWLEC 1206

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ecological Centre Pty Limited v Council of the City of Sydney (No 2) [2011] NSWLEC 1206

Hearing dates:

4, 5, 6, 11, 12, 18, 19 and 20 July 2011

Decision date:

20 July 2011

Jurisdiction:

Class 1

Before:

Moore SC

Decision:

(1)Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 as relevantly applicable, the applicant is to pay those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal, up to and including 11 July 2011;

(2)The appeal is dismissed;

(3)Development Application D/2010/1663 for approval of a concept plan for development at 9-15 Bowden Street and 132-138 McEvoy Street, Alexandria is determined by the refusal of development consent.

(4)The exhibits, other than Exhibit 1, are returned.

Catchwords:

Significance of extent of reduction of FSR proposed to be by condition of consent; inappropriate and unacceptable lack of certainty of nature of resultant development if condition imposed

Legislation Cited:

Environment Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997

Cases Cited:

Ecological Centre Pty Limited v Council of the City of Sydney (2011) NSWLEC 1203

Category:

Principal judgment

Parties:

Ecological Centre Pty Limited (Applicant)

Council of the City of Sydney (Respondent)

Representation:

Mr A Galasso SC and Mr R Notley (Applicant)

Mr P Larkin (Respondent)
Mr W Dwyer
Penfold Dwyer Lawyers Pty Limited (Applicant)

Mr P Kapetas
City Solicitor's Office (Respondent)

File Number(s):

10182 of 2011

Publication restriction:

None

EXTEMPORE Judgment

1. This appeal concerns a site at 9 - 15 Bowden Street and 132 - 138 McEvoy Street, Alexandria. It is generally flat and has a stormwater channel, owned as an asset by Sydney Water, running diagonally through the site from a generally north to south direction linking to Alexandria Canal.

1. The site is in an area that has been mapped as being at risk of flooding, particularly in a 1:100 year rainfall event. The site is zoned under the South Sydney Local Environmental Plan 1998 as 10(e), the Mixed Uses (e) zone.

1. That which is proposed, in the present application, is a concept plan seeking approval that would, in simplistic terms, define the footprints of and maximum heights of six buildings proposed to be located on the site.

1. As a consequence of the flooding evidence that has evolved during the course of the proceedings, the floor plate level of the lowest floor of each of the proposed buildings has also been defined. As a further consequence, it has been possible through the proceedings, to define how many levels are capable of being accommodated, in general terms, on each of the six buildings - a matter to which I will return.

1. The area of the site is a little over 16,500 sq m. The applicable general floor space ratio permissible for the site, pursuant to the South Sydney Development Control Plan's provisions for Green Square, is a floor space ratio of 1.5:1. The present application is based on a proposed concept that would run at a little under a floor space ratio of 2:1.

1. Yesterday, in a procedural ruling (see Ecological Centre Pty Limited v Council of the City of Sydney (2011) NSWLEC 1203), I declined to permit the applicant to reopen the proceedings in order to seek leave to amend to deal with a deficiency in the application that would then make potentially possible, under the Development Control Plan, the acquiring of bonus floor space ratio - to bring the proposal to 2:1 in a broad capability, as opposed to specific permissibility, sense.

1. As a consequence of that ruling, I am now left, it is agreed as I understand the parties, with the position that the only proposal I could approve [if I were to be satisfied on all the remaining issues - ones of some statutory and merit complexity not needing to be dealt with at this stage of my decision making] would only be one resulting in a development that complied with the 1.5:1 floor space ratio. Mr Notley, for the applicant, says to me that, as a consequence of the various calculations, the presently proposed floor area of ~ 33,000 sq m would need to be reduced to ~ 24,750 sq m (all numbers being rounded for the purposes of convenience).

1. As a consequence of the earlier expert evidence, the position is that only two of the proposed buildings could remain unaltered within their proposed envelopes in light of the flood level information. They are the buildings that have been designated, in Exhibit D in the proceedings, as Buildings A and D.

1. Building B would need to lose one floor, at an area of approximately 360 sq m. Building E would need to lose one floor, at an area of approximately 1800 sq m and Building F would need to lose half a floor or thereabouts at approximately 500 sq m.

1. Building C, a building about which it was conceded that I had imprecise flooding information, could, to take it at its highest for the applicant on the matter that I am now considering, need to lose up to two floors and, again, taking it at its highest for the applicant and assuming that two floors would be required to be lost, that would amount to 1,300 sq m.

1. The totality of the floor space that would need to be removed, as a consequence of the flooding information, is ~ 4,000 sq m. That would leave an additional ~ 4,500 sq m to be deleted to lower the developed area to compliance with the floor space ratio.

1. One of the matters that underpins my consideration (and the only matter that I need to turn to in the Local Environmental Plan) is the first of the zone objectives for the 10(e) zone and it is in the following terms: " To establish a predominantly employment-based zone while allowing residential use on appropriate development sites. "

1. While there are a number of matters arising from that objective in contention in the broader range of matters in these proceedings, the only one that is relevant to this consideration is the concept of a predominance of employment-based development - that, I take for the purpose of this discussion consistent with a resolution of the council that is relevant in these proceedings, means at least 50% of the development on the site should be for employment-type activities. Whilst such concept is capable of minor adjustment (on a de minimus basis) one-way or the other, as a broad rule of thumb, about half of the development would need to be employment related and half residential. The removal of the various levels of the various buildings discussed in (8) and (9) would still, in general terms, be capable of satisfaction of that zone objective.

1. However, the removal of an additional 4,500 sq m, even on the basis that Mr Notley puts to me that the broad concept would need to be retained, that is of six buildings, is one that would involve me leaving to a later stage significant questions of what the concept would look like if I were to impose a condition that simply said the floor space ratio should be at 1.5:1.

1. I note in passing, that this is in the context where the floors that need to be removed, as a consequence of the flooding evidence, have not been proposed to be removed by way of amendment by the applicant but are left to me to deal with by condition, if I were to proceed to adopt the concept after consideration of the whole of the otherwise undetermined and remaining issues.

1. The matter that is of concern to me, significantly, is the certainty, or the lack thereof, of what the development would look like if I were to approve a concept that required the removal of ~ 4,500 sq m of unidentified floor space from unidentified buildings. After the levels that have to be removed, and would have to be removed by me by condition to respond to the flooding issues, the residual floor area of Building B (which is a residential and commercial building) would be ~ 1,800 sq m and the residual area of Building C, which is proposed to be an entirely employment-related building, would be ~ 2,000 sq m.

1. As a result, if I were simply to approve the concept with a requirement that an additional ~ 4,500 sq m be removed for the subsequent detailed development application stage, that could include abandonment entirely of two complete buildings of that which is proposed, in order to satisfy the requirement for the reduction of the floor space ratio. In making those observations, I do not seek to say that that is what the applicant would do; I am simply indicating that it is something that is capable of being accommodated within the conditional requirement sought.

1. My ability to impose conditions, as a general proposition, only permits me to impose such conditions that would approve a development and have it remain generally a development of the nature for which approval has been sought. I do not need to set out authority for that, it is such a fundamental planning proposition - that one cannot, on an application for an elephant, approve a lion or vice versa.

1. In this instance, although probably I would have been able to require deletion by condition of the identified levels in response to the flooding evidence and still be confident that the overall concept would be sufficiently broadly the same to be able to be consented to (if all other issues were resolved) but an at-large, unconstrained, unidentified additional requirement for the removal of a further ~ 4,500 sq m or thereabouts of floor space could not, in my view, on any reasonable construction, enable me to be confident that the development that would result if the concept plan would be approved on such a conditional basis, would be a development that would be consistent with and sufficiently similar to the development that was put to me for approval.

1. The consequence of that is that, without needing to determine the wide range of other statutory and merit issues that have been canvassed during this extensive hearing, I am obliged, simply on the floor space ratio non-compliance and, in my view, the lack of certainty that flows there from, to reject the application.

1. As consequence of the foregoing, the orders of the Court are:

1. Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 as relevantly applicable, the applicant is to pay those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal, up to and including 11 July 2011;

2.   The appeal is dismissed;

3.   Development Application D/2010/1663 for approval of a concept plan for development at 9-15 Bowden Street and 132-138 McEvoy Street, Alexandria is determined by the refusal of development consent.

4.   The exhibits, other than Exhibit 1, are returned.

Tim Moore

Senior Commissioner

Decision last updated: 21 July 2011