Fortius Broadway No 1 Pty Ltd v Minister for Planning; The Owners - Strata Plan No 87881 v Minister for Planning; The Owners - Strata Plan No 88765 v Minister for Planning

[2024] NSWLEC 1730

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fortius Broadway No 1 Pty Ltd v Minister for Planning; The Owners – Strata Plan No 87881 v Minister for Planning; The Owners – Strata Plan No 88765 v Minister for Planning; The Owners – Strata Plan No 89262 v Minister for Planning [2024] NSWLEC 1730

Hearing dates:

Conciliation Conference 24 July and 29 October 2024

Date of orders:

12 November 2024

Decision date:

12 November 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

Proceedings 2023/37295

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Minister for Planning to Fortius Broadway No 1 Pty Ltd (ACN 634 804 550), dated 10 January 2023, in respect of land identified as Lot 327 in Deposited Plan 1270348, is modified in accordance with the instrument set out in Annexure A.

Proceedings 2023/37305

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Minister for Planning to The Owners – Strata Plan No 87881, dated 10 January 2023, in respect of land identified as Strata Plan 87881, is modified in accordance with the instrument set out in Annexure B.

Proceedings 2023/37299

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Minister for Planning to The Owners – Strata Plan No 88765, dated 10 January 2023, in respect of land identified as Strata Plan 88765, is modified in accordance with the instrument set out in Annexure C.

Proceedings 2023/37297

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Minister for Planning to The Owners – Strata Plan No 89262, dated 10 January 2023, in respect of land identified as Strata Plan 89262, is modified in accordance with the instrument set out in Annexure D.

Catchwords:

DEVELOPMENT CONTROL ORDER – fire safety order - conciliation conference – agreement between the parties – orders

Legislation Cited:

Building Products (Safety) Act 2017, ss 9, 17

Environmental Planning and Assessment Act 1979, Sch 5, Pt 2, ss 8.18, 9.35

Land and Environment Court Act 1979, ss 17, 34

Land and Environment Court Rules 2007, r 3.10

Uniform Civil Procedure Rules 2005, rr 36.15, 36.16

Category:

Principal judgment

Parties:

Proceedings 2023/37295
Fortius Broadway No 1 Pty Ltd (Applicant)
Minister for Planning (Respondent)

Proceedings 2023/37305
The Owners – Strata Plan No 87881 (Applicant)
Minister for Planning (Respondent)

Proceedings 2023/37299
The Owners – Strata Plan No 88765 (Applicant)
Minister for Planning (Respondent)

Proceedings 2023/37297
The Owners – Strata Plan No 89262 (Applicant)
Minister for Planning (Respondent)

Representation:

Proceedings 2023/37295, 2023/37305, 2023/37299, 2023/37297
Counsel:
C Novak (Applicant)
T Poisel (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
NSW Department of Planning and Environment (Respondent)

File Number(s):

2023/37295
2023/37305
2023/37299
2023/37297

Publication restriction:

No

Judgment

COMMISSIONER:

Introduction

1. This judgment deals with the following four appeals:

1. Proceedings 2023/37295 (Fortius Proceedings) relating to the Development Control Order issued to Fortius Broadway No 1 Pty Ltd dated 10 January 2023 (Fortius Order);

2. Proceedings 2023/37305 (SP No 87881 Proceedings) relating to the Development Control Order issued to The Owners – Strata Plan No 87881, dated 10 January 2023 (SP No 87881 Order);

3. Proceedings 2023/37299 (SP No 88765 Proceedings) relating to the Development Control Order issued to The Owners – Strata Plan No 88765 dated 10 January 2023 (SP No 88765 Order); and

4. Proceedings 2023/37297 (SP No 89262 Proceedings) relating to the Development Control Order issued to The Owners – Strata Plan No 89262 dated 10 January 2023 (SP No 89262 Order);

(collectively, the Proceedings).

2. All four proceedings relate to appeals by the applicants in the respective proceedings against the respondent in connection with the Fortius Order, SP No 87881 Order, SP No 88765 Order and SP No 89262 Order, respectively (collectively, the Orders). The Orders were all issued on 10 January 2023 and in identical terms, save that the respective orders identified and were issued to four different entities, being owners of various parts of the land referred to in those orders. By way of summary, the Orders required the respective applicants to take specified measures to ensure or promote adequate fire safety at premises known as One Central Park at 28 Broadway, Chippendale, also known as 2 Chippendale Way, Chippendale and 1-3 Carlton Street, Chippendale (Premises).

3. The applicant in the Fortius Proceedings is the registered proprietor of Lot 327 in Deposited Plan 1270348.

4. The applicant in the SP No 87881 Proceedings is the registered proprietor of the common property in Strata Plan No 87881.

5. The applicant in the SP No 88765 Proceedings is the registered proprietor of the common property in Strata Plan No 88765.

6. The applicant in the SP No 89262 Proceedings is the registered proprietor of the common property in Strata Plan No 89262.

7. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

8. The Premises comprises a mixed use retail, commercial and residential building with ancillary retail uses consisting of two towers with terraces and a heliostat.

9. Relevantly, the Minister for Planning (Minister) was the consent authority in respect of the development carried out at the Premises (see Major Project Approval MO09_0078 (as modified)).

10. On 10 August 2018, a former Commissioner for Fair Trading, the Department of Customer Service, issued a notice pursuant to s 9(1) of the Building Products (Safety) Act 2017 (BP Act) to prohibit the use of aluminium composite panels (ACP) with a core comprised of greater than 30 percent polyethylene by mass in any external cladding, external wall, external insulation, façade or rendered finish in specified buildings (Building Product Use Ban).

11. The Building Product Use Ban commenced on 15 August 2018.

12. On 17 July 2019, the Department of Planning and Environment (Department) identified the Premises as an “affected building” pursuant to s 17(1) of the BP Act.

13. Following lengthy discussions between the parties in the four proceedings, the Department issued a Notice of Intention to Give a Development Control Order – Fire Safety Order (NOI) to the applicants on 9 March 2022.

14. Following representations from the applicants, the Department issued a revised Notice of Intention to Give a Development Control Order – Fire Safety Order (Second NOI).

15. Following further representations from the applicants, the Department issued the Orders to the applicants on 10 January 2023.

16. On 3 February 2023, the applicants commenced the Proceedings, being within the time period specified in s 8.18(3) of the EPA Act.

17. On 3 March 2023, the Court made orders for all of the Proceedings to be heard together.

18. On 27 June 2023, the parties participated in a s 34 conference in respect of the Proceedings. The parties were unable to reach agreement and the conciliation conference was terminated.

19. On 17 July 2024, a joint expert report of the parties’ fire safety engineers was filed and served in the Proceedings.

20. On 24 July 2024, the parties participated in a further s 34 conciliation conference in respect of the Proceedings which was adjourned on multiple occasions. I presided over the conciliation conference.

21. On 24 August 2023, the Court made orders staying relevant items in the Orders subject to conditions (August 2023 Orders).

22. During the course of the conciliation process, the parties reached agreement as to the resolution of both proceedings.

23. The agreement reached is for the Orders to be modified including to extend the timeframe for compliance with various items as set out in the original Orders and to remove the requirement to comply with other specified items (Modified Orders). As with the original Orders, the Modified Orders are in largely identical terms save that the respective Modified Orders identify and are issued to the four different entities.

24. The parties provided signed s 34 agreements in the Proceedings on 1 November 2024 with accompanying jurisdictional statements.

25. On 11 November 2024, the Court made further orders discharging the August 2023 Orders.

Modified Orders

26. To make orders in accordance with the parties’ agreement in the Proceedings, I must be satisfied that the decision to make orders modifying the Orders is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

27. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

(4) On hearing an appeal, the Court may –

(a) revoke the development control order; or

(b) modify the development control order; or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

28. It is clear that the Court has power to modify a development control order pursuant to s 8.18(4)(b) of the EPA Act.

29. I am satisfied the Orders should be modified in the manner proposed by the parties on the basis that the Modified Orders are agreed by the parties to be issued pursuant to Item 1 of Pt 2 of Sch 5 of the EPA Act, being a “Fire Safety Order”. For the purposes of Item 1 of Pt 2 of Sch 5 of the EPA Act:

1. the Modified Orders require the applicants to do specified things for the purposes of ensuring or promoting adequate fire safety and are therefore in accordance with Column 1 of Item 1 of Pt 2 in Sch 5;

2. the Modified Orders are for the purposes of ensuring and promoting adequate fire safety to prevent fire, suppress fire or prevent the spread of fire and also to ensure or promote the safety of persons in the event of fire for the purposes of Column 2 of Item 1 of Pt 2 in Sch 5; and

3. the applicants in the Proceedings are the owners of the Premises the subject of the Modified Orders such that the applicants are able to be issued with the Modified Orders pursuant to Column 3 of Pt 2 of Sch 5 of the EPA Act.

30. For completeness, I note that the parties agree the original Orders were validly issued by the Minister, being in relation to development for which the Minister is or has been the consent authority (see s 9.35(1)(a) of the EPA Act).

Conclusion

31. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the Proceedings in accordance with the parties’ decision.

Orders

Proceedings 2023/37295

32. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Minister for Planning to Fortius Broadway No 1 Pty Ltd (ACN 634 804 550), dated 10 January 2023, in respect of land identified as Lot 327 in Deposited Plan 1270348, is modified in accordance with the instrument set out in Annexure A.

Proceedings 2023/37305

33. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Minister for Planning to The Owners – Strata Plan No 87881, dated 10 January 2023, in respect of land identified as Strata Plan 87881, is modified in accordance with the instrument set out in Annexure B.

Proceedings 2023/37299

34. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Minister for Planning to The Owners – Strata Plan No 88765, dated 10 January 2023, in respect of land identified as Strata Plan 88765, is modified in accordance with the instrument set out in Annexure C.

Proceedings 2023/37297

35. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Minister for Planning to The Owners – Strata Plan No 89262, dated 10 January 2023, in respect of land identified as Strata Plan 89262, is modified in accordance with the instrument set out in Annexure D.

N Targett

Commissioner of the Court

2023.37295 Annexure A

2023.37305 Annexure B

2023.37299 Annexure C

2023.37297 Annexure D

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Decision last updated: 12 November 2024