Lane Cove Council v Orca Partners Management Pty Ltd (No 2)

[2015] NSWLEC 52

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52

Hearing dates:

5 and 6 November 2014; written submissions 6, 10 and 13 November 2014

Date of orders:

07 April 2015

Decision date:

02 April 2015

Jurisdiction:

Class 4

Before:

Sheahan J

Decision:

1. The applicant Council’s amended summons is dismissed.
2. Costs are reserved.
3. The Court Book, including Exhibit A4, is to remain in the Court file, but all other exhibits are returned.

Catchwords:

DEVELOPMENT CONSENT: “concept development approval” – consent granted by Joint Regional Planning Panel – requests made for development standard dispensations under the LEP – whether those requests satisfied requirements of the LEP – jurisdictional fact – Wednesbury unreasonableness – failure to consider mandatory relevant considerations – consideration of irrelevant matters – circumstances in which Director-General’s concurrence may be assumed.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987
Lane Cove Local Environmental Plan 2009
Lane Cove Development Control Plan 2010
State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development
State Environmental Planning Policy (State and Regional Development) 2011
State Environmental Planning Policy No 1 – Development Standards (NSW)

Cases Cited:

Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Carstens v Pittwater Council [1999] NSWLEC 249; 111 LGERA 1
Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257
City Of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; 167 LGERA 52
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438
Lane Cove Council v Orca Partners Management (No 1) [2014] NSWLEC 162
Liberty Investments Pty Ltd v Blacktown City Council [2009] NSWLEC 7
Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 106; 110 LGERA 217
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 401; 162 CLR 24
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
Parramatta City Council v Hale (1982) 47 LGRA 319
Prasad v The Minister Administering the Environmental Planning and Assessment Act 1979 [2010] NSWLEC 193
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Selby v Pennings (1998) 19 WAR 520; 102 LGERA 253
Somerville v Dalby (1990) 69 LGRA 422
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55
Wehbe v Pittwater Council [2007] NSWLEC 827; 156 LGERA 446
Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; 130 LGERA 79
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707
Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589

Texts Cited:

M Aronson, The Resurgence of Jurisdictional Facts (2001) 12 Public Law Rev 17

Category:

Principal judgment

Parties:

Lane Cove Council (Applicant)
Orca Partners Management Pty Ltd ACN 096 175 567 (First Respondent)
Sydney East Region Joint Planning Panel (Second Respondent)
Michael Keith Van Twest (Third Respondent)
Peter John Baum (Fourth Respondent)
Xiao Man Wang (Fifth Respondent)
Ngai Wong (Sixth Respondent)
Quingsheng Zhou (Seventh Respondent)
Yueming Li (Eighth Respondent)
Joseph Stanley (Ninth Respondent)
Pamela Joan Stanley (Tenth Respondent)
Michael Peter Hone (Eleventh Respondent)
Una Isabel McCathie (Twelfth Respondent)
John De Vere Tyrrell (Thirteenth Respondent)
Ursula Regina Lydia Mooser (Fourteenth Respondent)
Heinrich Walter Mooser (Fifteenth Respondent)
Alice Lai Ping So (Sixteenth Respondent)
Jim Spanos (Seventeenth Respondent)
Toula Spanos (Eighteenth Respondent)
Christine Carberry (Nineteenth Respondent)
Heidi Sung Man Wong (Twentieth Respondent)
John Martin McNamara (Twenty First Respondent)
Judith Anne McNamara (Twenty Second Respondent)
Rosena May Sampson (Twenty Third Respondent)
Andrew De Vere Tyrell (Twenty Fourth Respondent)
David John Haugh (Twenty Fifth Respondent)
Rosanne Haugh (Twenty Sixth Respondent)
John William Davis (Twenty Seventh Respondent)
Janice Mary Davis (Twenty Eighth Respondent)
Yifang Australia Pty Ltd ACN 164 674 828 (Twenty Ninth Respondent)
Orca Partners Pty Ltd ACN 118 154 751 (Thirtieth Respondent)

Representation:

Counsel:

Mr A Galasso, SC and Mr M Astill, barrister (Applicant)
Mr D Miller, SC (First Respondent)
Mr P Tomasetti, SC and Mr J Johnson, barrister (Twenty Ninth Respondent)
(Respondents Two to Twenty Eight and Thirty submitting)

Solicitors:

Marsdens Law Group (Applicant)
Gadens (First Respondent)
Department of Planning & Environment (Second Respondent)
CKSD Lawyers (Twenty Ninth Respondent)
Various (Submitting Respondents)

File Number(s):

40694 of 2014

Judgment

A: Introduction

1. These are expedited judicial review proceedings.

2. They have been brought by the applicant Council to have the Court declare invalid, a development consent (“DC” – No 13/194), which applies to a site which is to be consolidated within the Council’s local government area.

3. Council seeks a declaration of such invalidity, consequential restraining orders against most respondents (the first, and the third to the thirtieth), and an order for its costs.

4. The Council’s case, argued on its behalf by Mr A Galasso SC (and with him Mr M Astill of counsel) is that the subject consent, granted by the second respondent, Sydney East Joint Regional Planning Panel (“the JRPP”) breaches the requirements of the Lane Cove Local Environmental Plan 2009 (“LEP”).

5. The project at the centre of the matter is Stage 1 of a “staged development”. It has an estimated value of approximately $65 million, will contain 245 apartments in 4 buildings, and is expected to be completed in April 2017.

The 30 Respondents

6. There are 30 respondents now named in the Council’s amended summons.

7. Only two respondents (the 1st and 29th) have appeared as active contradictors.

8. The first respondent, Orca Partners Management Pty Ltd (“Orca”), is the proponent of the development application (“DA”), and is represented by Mr D Miller SC.

9. The 29th respondent, Yifang Australia Pty Ltd (“Yifang”), is represented by Mr P Tomasetti SC (and with him Mr J Johnson of counsel).

10. As Biscoe J noted in Lane Cove Council v Orca Partners Management Pty Ltd [2014] NSWLEC 162, on 30 October 2014, Yifang, and the 30th respondent, Orca Partners Pty Ltd (“Partners”), are parties to an agreement, under which Partners will assign to Yifang the rights it has acquired to purchase the properties that are embraced in the DC.

11. His Honour added both Yifang and Partners as respondents to the Council’s proceedings, but Partners have filed a submitting appearance, save as to costs.

12. The second respondent, the JRPP, considered recommendations made to it by the Council, and determined the application contrary to them. It has filed a submitting appearance, save as to costs, but its solicitor, Ms L Sims:

1. expressed relevant views in a letter to Council’s solicitor, prior to the hearing, upon which booth Mr Miller and Mr Tomasetti relied in their submissions (at pars 52 and 41 respectively); and

2. appeared before me briefly (Tp30) to advise, in response to a Notice to Produce issued by the Council (Exhibit A3), that it had no documents to produce.

13. All other named respondents, namely the third to 28th, are owners of the affected properties, and all of them have also filed submitting appearances, save as to costs.

The Agreed Facts

14. For completeness, I include, in full, at this point, a Statement of Agreed Facts (“ASOF”):

1.   The subject land is known as 2-22 Birdwood Avenue and 11-15 Finlayson Street, Lane Cove and comprises 17 individual allotments with each of the individual allotments in separate ownership ("the land").

2. The land is zoned R4 High Density Residential under the Lane Cove Local Environmental Plan 2009 ("the LEP"). The land has an area of 10479.3m2.

3.   [Partners] has entered into an Option Deed with each of the owners of the individual allotments comprising the land wherein it is entitled to purchase each of the individual allotments.

4.   On 17 July 2014 [Partners] entered into a document titled "Agreement to Assign Option Deed" with [Yifang] wherein [Partners] agrees to assign its rights to purchase the individual allotments to [Yifang].

5.   [Orca], by its agent, has lodged with ... Council on or around 25 November 2013 a development application seeking development consent for "Stage 1 Concept Plan application for the redevelopment of the site for the purpose of four (4) residential flat buildings, basement, car parking and on-site landscaping. Approval is sought for the concept plan only and no physical works at this stage" for the land. ("DA194/13")

6.   DA194/13 confirmed that the cost of the proposal was Sixty four million six hundred and eighty five thousand four hundred and five dollars ($64,685,405.00).

7.   Having regard to the fact that the capital investment value of the proposal exceeds Twenty million dollars ($20,000,000.00) DA194/13 was referred to the [JRPP] to exercise the function of determining DA194/13.

8.   The gross floor area as detailed in DA194/13 was consistent with a floor space ratio of 1.95:1.

9. DA194/13 was accompanied by a building envelope plan that depicted buildings whose height was in excess of 18 metres when measured in accordance with the definition of 'building height' under [the LEP].

10. Two written requests pursuant to clause 4.6 of the LEP were contained in the Statement of Environmental Effects [(“SEE”)] dated November 2013 accompanying DA194/13.

11.   The chronology of events was as per the agreed chronology.

The Evidence

15. The three active parties prepared a court book, which included the ASOF, and a chronology, and they largely agreed on what other documentary evidence would be tendered to the court.

16. Each tendered two large folders of documents, among which there is some repetition of material, and I allowed Yifang to read three affidavits, one each by:

1. Lixiang (“Stone”) Bai, a 50% shareholder of Yifang and in charge of the project on its behalf;

2. Carl Ku, Yifang’s solicitor; and

3. Stephen Sanlorenzo, of APP Corporation, Yifang’s project manager for the subject development.

17. None of the deponents was required for cross-examination.

18. Specifically put before the Court, apart from the six tendered bundles, and the Court Book, were a Council Notice to Produce (Exhibit A3), and the Statements of Reasons (“SOR”) provided by the participating members of the JRPP (Exhibit A4 – tabs 9 to 13 of the Court Book).

B: The Lane Cove LEP

19. The LEP (Exhibit O2, Tab 12 – [4] above), is modelled upon the “Standard Instrument”.

20. The Land Use Table for its “R4 High Density Residential” zone (see also cl 2.3) provides as follows:

1 Objectives of zone

•   To provide for the housing needs of the community within a high density residential environment.

•   To provide a variety of housing types within a high density residential environment.

•   To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•   To provide for a high concentration of housing with good access to transport, services and facilities.

•   To ensure that the existing amenity of residences in the neighbourhood is respected.

•   To avoid the isolation of sites resulting from site amalgamation.

•   To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

2 Permitted without consent

Nil

3 Permitted with consent

Bed and breakfast accommodation; Boarding houses; Child care centres; Community facilities; Exhibition homes; Group homes; Home businesses; Home industries; Hotel or motel accommodation; Multi dwelling housing; Neighbourhood shops; Places of public worship; Residential flat buildings; Respite day care centres; Roads; Shop top housing; Signage

4 Prohibited

Any development not specified in item 2 or 3

21. Clause 1.4 incorporates a “dictionary”, which includes the following definition:

building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

22. It also includes a fairly self-explanatory definition of “gross floor area”, but for a definition of “floor space ratio” it refers the reader to cl 4.5, which is in Part 4 of the LEP.

23. Other relevant clauses of the LEP are:

1.6 Consent authority

The consent authority for the purposes of this Plan is (subject to the Act) the Council.

...

1.9 Application of SEPPs

(1)   This Plan is subject to the provisions of any State environmental planning policy that prevails over this Plan as provided by section 36 of the Act.

(2)   The following State environmental planning policies (or provisions) do not apply to the land to which this Plan applies:

State Environmental Planning Policy No 1—Development Standards ...

...

24. In Part 4 one finds the Principal Development Standards.

25. Clause 4.3 provides (emphasis added):

4.3 Height of buildings

(1)   The objectives of this clause are as follows:

(a)   to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, and

(b)   to maximise sunlight for the public domain, and

(c)   to relate development to topography.

(2)   The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

...

26. Clause 4.4 deals with floor space ratio (“FSR”) in these terms (emphasis added):

(1)   The objectives of this clause are as follows:

(a)   to ensure that the bulk and scale of development is compatible with the character of the locality.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(2A)   Despite subclause (2):

(a) the maximum floor space ratio for multi dwelling housing on land in Area 1 on the Floor Space Ratio Map is 0.4:1, and

(b) the maximum floor space ratio for a building containing shop top housing on land in Area 2 on the Floor Space Ratio Map is 2.5:1.

27. Clause 4.5 deals with the calculation of FSR and site area, but need not be set out in full.

28. Clause 1.7 provides for the incorporation of maps, such as the FSR map (Exhibit O2, tab 13), and the Height of Building (“HOB”) map (Exhibit O2, tab 14). According to those maps, the subject site has a maximum FSR of 1.7:1 and a height limit of 18 metres.

29. The Council contends (subs par 3) that the JRPP’s decision to grant the relevant DC “was contrary to the requirements of the [LEP] and particularly the requirements imposed by clauses 4.3 to 4.6 inclusive ...”

30. Of particular relevance is cl 4.6, concerning exceptions, which, in granting a “dispensing power”, provides (emphasis added):

4.6 Exceptions to development standards:

(1)   The objectives of this clause are as follows:

(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)   Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)   Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)   that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)   Development consent must not be granted for development that contravenes a development standard unless:

(a)   the consent authority is satisfied that:

(i)   the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)   the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)   the concurrence of the Director-General has been obtained.

(5)   In deciding whether to grant concurrence, the Director-General must consider:

(a)   whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)   the public benefit of maintaining the development standard, and

(c)   any other matters required to be taken into consideration by the Director-General before granting concurrence.

...

(7)   After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).

...

31. On 9 May 2008, the Department of Planning issued a Planning Circular (no PS08 – 003 – Exhibit Y1, tab 3) to notify Councils of arrangements “where the Director-General’s concurrence may be assumed for exceptions to development standards under environmental planning instruments that adopt clause 4.6 (or the former clause 24) of the Standard Instrument, or any similar clause providing for exceptions to development standards” (emphasis added).

32. The circular says:

[LEPs] that adopt the Standard Instrument will repeal the application of SEPP 1 for the land to which the plan applies. The Director-General has decided to notify councils that they may assume the Director-General’s concurrence under environmental planning instruments that adopt clause 4.6 (or the former clause 24) of the Standard Instrument, or similar clause, which provide for exceptions to development standards.

Notification of assumed concurrence of the Director-General under clause 4.6(4) (and the former clause 24(4)) of the Standard Instrument.

(1) Under clause 64 of the Environmental Planning and Assessment Regulation 2000 [(“EPA Reg”)], council is notified that it may assume the Director-General’s concurrence for exceptions to development standards, subject to paragraphs (2) and (3), in respect of all applications made under:

(a) clause 4.6 (or the former clause 24, or any future amended version of this clause) of the Standard Instrument ([LEPs]) Order 2006, or

(b)   any other clause that is based on a substantially similar format and has a substantially similar effect to the clause described in (1)(a),

where such a clause is adopted in an environmental planning instrument to provide for exceptions to development standards.

(2)   Council may assume the Director-General’s concurrence in respect of an application to vary a development standard relating to the minimum lot size for the erection of a dwelling on land zoned RU1, RU2, RU3, RU4, RU6, R5, E2, E3, or E4 (or equivalent zone) only if:

(a)   only one allotment does not comply with the minimum area, and

(b)   that allotment has an area equal to or greater than 90% of the minimum area specified in the development standard.

...

C: Other Relevant Provisions

The EPA Act

33. The subject DA being for a “staged development”, it attracted the provisions of Div 2A of Part 4 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). The relevant provisions of that division are as follows:

Division 2A Special procedures concerning staged development applications

83A Application of this Division

This Division applies to staged development applications and to consents granted on the determination of those applications.

83B Staged development applications

1.   For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.

2.   A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.

3.   If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:

(a)   consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b)   the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

4.   The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3).

...

83D Status of staged development applications and consents

(1)   The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application.

...

(2)   While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent.

(3)   Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application.

34. Section 4 includes some relevant definitions:

4 Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

...

consent authority, in relation to a development application or an application for a complying development certificate, means:

(a)   the council having the function to determine the application, or

(b)   if a provision of this Act, the regulations or an environmental planning instrument specifies a Minister, the Planning Assessment Commission, a joint regional planning panel or public authority (other than a council) as having the function to determine the application—that Minister, Commission, panel or authority, as the case may be.

...

development means:

(a)   the use of land, and

(b)   the subdivision of land, and

(c)   the erection of a building, and

(d)   the carrying out of a work, and

(e)   the demolition of a building or work, and

(f)   any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

...

35. Relevant to the workings of the JRPP are ss 23G and 23H:

23G Joint regional planning panels

(1) The Minister may, by order published on the NSW legislation website, constitute a joint regional planning panel for a particular part of the State specified in the order.

(2)   A regional panel has the following functions:

(a)   any of a council’s functions as a consent authority that are conferred on it under an environmental planning instrument,

(b)   any functions that are conferred on it under Division 1AA (Planning administrators and panels) of Part 6,

(c)   to advise the Minister or the Director-General as to planning or development matters or environmental planning instruments relating to the part of the State for which it is appointed, or any related matters, if requested to do so by the Minister or the Director-General (as the case may be).

(2A) An environmental planning instrument may only confer a council’s functions as consent authority on a regional panel if the development is of a class or description set out in Schedule 4A. The functions of a consent authority may only be conferred on a regional panel in accordance with subsection (2) (a) and this subsection.

(2B)   Any environmental planning instrument that is in force on the commencement of subsection (2A) ceases to have effect to the extent that it is inconsistent with that subsection.

(3)   A regional panel has the functions conferred or imposed on it by or under this or any other Act.

(4)   A regional panel is not subject to the direction or control of the Minister, except in relation to the procedures of the regional panel and to the extent specifically provided for in this Act.

(4A)   Legal proceedings by or against a regional panel are to be taken in the name of the regional panel and not by or against the members of the regional panel.

(5)   A regional panel is a statutory body representing the Crown.

(5A)   Subject to the regulations, a regional panel is, in the exercise of functions conferred under subsection (2) (a), taken to be the council whose functions are conferred on a regional panel as referred to in subsection (2) (a).

(5B)   A regional panel is to exercise functions conferred as referred to in subsection (2) (a) to the exclusion of the applicable council (subject to any delegation under this Act).

(5C)   Subsections (5A) and (5B) apply to the Commission in its exercise of the functions of a regional panel under an environmental planning instrument that are conferred on the Commission under section 23D (1) (d) in the same way as they apply to a regional panel in the exercise of functions conferred as referred to in subsection (2) (a).

(6) Schedule 4 has effect with respect to regional panels.

23H Regulations

The regulations may make provision for or with respect to the following matters:

(a)   the functions conferred by this Act on a regional panel including its procedures in exercising its functions, and procedures in relation to its determination of development applications and applications to modify development consents,

(b)   the provision of information and reports by regional panels,

(c)   without limiting paragraph (a), providing that parties to matters being determined by a regional panel are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances.

36. “Concurrence” is an issue in this case, and s 79B provides:

79B Consultation and concurrence

(1) General

If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent.

...

(8)   Granting or refusal of concurrence

A person whose concurrence to development is required may:

(a)   grant concurrence to the development, either unconditionally or subject to conditions, or

(b)   refuse concurrence to the development.

In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 30 (3) and applicable to the development (unless the relevant environmental planning instrument is a deemed instrument referred to in Division 2 of Part 21 of Schedule 6).

...

(9)   Giving effect to concurrence

A consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence. This does not affect the right of the consent authority to impose conditions under section 80A not inconsistent with the conditions of the concurrence or to refuse consent.

...

37. Section 26 deals with the contents of environmental planning instruments, and Div 6 of Part 3 with development control plans. Assessment of development proposals is dealt with in Part 4. Proposals are categorised under Div 1 of the Part (ss 76, 76A, and 76B), evaluated by consideration in accordance with s 80. Conditions can be imposed on consents, under the provisions of s 80A.

38. Schedule 4 of the EPA Act deals with the constitution and operation of JRPPs, and Schedule 4A sets the criteria under which project applications are referred to JRPPs. One criterion is a “capital investment value” of more than $20 million.

The EPA Regulation

39. Several provisions in the EPA Reg are also of major relevance.

40. Clause 3 defines “capital investment value”, “concurrence authority”, and other terms, and Part 6 Div 1, especially cl 50, deals with the making of DAs. Division 2 of that Part deals with DAs which require “concurrence”. That Division comprises clauses 58 to 64, of which the following are particularly involved in the present matter:

58 Application of Division

(1)   This Division applies to all development applications that relate to development for which the concurrence of a concurrence authority is required.

(2) This Division does not apply in circumstances in which a concurrence authority’s concurrence may be assumed in accordance with clause 64.

(3)   This Division ceases to apply to a development application if the development application is rejected or withdrawn under clause 51 or 52.

59 Seeking concurrence

(1)   After it receives a development application for development requiring concurrence, the consent authority:

(a)   must forward a copy of the application (together with all accompanying documentation) to the concurrence authority whose concurrence is required, and

(b)   must notify the concurrence authority in writing of the basis on which its concurrence is required and of the date of receipt of the development application, and

(c)   if known at that time, must notify the concurrence authority in writing of the dates of the relevant submission period or periods if the application is to be publicly notified under section 79 or 79A of the Act.

(2)   In the case of a development application that indicates on its face that such concurrence is required, the application must be forwarded to the relevant concurrence authority within 14 days after the application is lodged.

...

63 Reasons for granting or refusal of concurrence

(1)   If the concurrence authority:

(a)   grants concurrence subject to conditions, or

(b)   refuses concurrence,

the concurrence authority must give written notice to the consent authority of the reasons for the imposition of the conditions or the refusal.

(2) If the concurrence is one that is required under section 79B (3) of the Act, a copy of the reasons must be available for public inspection, during ordinary office hours:

(a)   at the head office of the National Parks and Wildlife Service, or

(b)   if the matter concerns critical habitat of fish or marine vegetation, or threatened species, populations or ecological communities of fish or marine vegetation or their habitats, at the head office of NSW Fisheries.

64 Circumstances in which concurrence may be assumed

(1)   A concurrence authority may, by written notice given to the consent authority:

(a)   inform the consent authority that concurrence may be assumed, subject to such qualifications or conditions as are specified in the notice, and

(b)   amend or revoke an earlier notice under this clause.

(2)   A consent granted by a consent authority that has assumed concurrence in accordance with a notice under this clause is as valid and effective as if concurrence had been given.

41. Division 3A of Part 6 includes two “special provisions relating to staged [DAs]”, namely:

70A   Information to be included in staged development applications

Despite clause 50 (1) (a), the information required to be provided in a staged development application in respect of the various stages of the development may, with the approval of the consent authority, be deferred to a subsequent development application.

70B   Staged development applications—residential flat development

Clause 50 (1A) applies in relation to a staged development application only if the application sets out detailed proposals for the development or part of the development.

42. Division 12A makes “additional provisions where [a] regional panel is exercising consent authority functions”, and includes cl 123E:

123E   Procedural matters related to determination of development applications

(1)   A regional panel may, for the purpose of determining a development application:

(a)   obtain assessment reports, in addition to any assessment report or other information provided by a relevant council in dealing with the application, and

(b)   obtain other technical advice or assistance as the panel thinks fit.

(2)   If a development consent is granted by a regional panel subject to a condition referred to in section 80 (3) or 80A (2) of the Act, the regional panel is taken to be satisfied as to a matter specified in the condition if the council for the area in which the land on which the development is to be carried out notifies the chairperson of the panel in writing that the matter specified in the condition has been satisfied.

43. Schedule 1 of the EPA Reg was also referred to, and it deals with forms. Clauses 1 and 2 list the information to be included in a DA, and the documents to accompany one, such as a SEE.

State Environmental Planning Policies

44. Two SEPPs (apart from No 1, to which I will return) are of some relevance to the project, namely State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (“SEPP 65” – Exhibit O2, tab 10), and State Environmental Planning Policy (State and Regional Development) 2011 (“SEPP-SRD”).

45. Part 4 of SEPP-SRD deals with Regional Development, and provides as follows:

20   Development to which Part applies

This Part applies to development of a class or description included in Schedule 4A to the Act.

21   Council consent functions to be exercised by regional panels

(1)   A regional panel for a part of the State may exercise the following consent authority functions of the council or councils for that part of the State for development to which this Part applies:

(a) the determination of development applications, and applications for the modification of development consents previously granted by the panel, in accordance with Part 4 of the Act,

(b) without limiting paragraph (a), the functions of a consent authority under Divisions 2 and 2A of Part 4 of the Act and sections 89A, 93I, 94, 94A, 94B, 94C, 94CA, 94EF, 94F, 95 (2), 96 (2) and 96AA of the Act.

(2)   However, the following functions of a council as a consent authority are not conferred by this clause on a regional panel:

(a) the functions conferred by section 79B of the Act (other than section 79B (9)),

(b)   the functions conferred by section 80A (7)–(10) of the Act,

(c)   the functions conferred by section 82B of the Act,

(d)   the functions conferred by sections 94 (5) and 94EF (5) of the Act,

(e)   the receipt and assessment of development applications,

(f)   the determination and receipt of fees for development applications,

(g)   notification of determination of development applications,

(h)   the functions conferred by section 95A of the Act,

(i)   the determination of applications for modification of consents on the ground of a minor error, misdescription or miscalculation under section 96 (1) of the Act,

(j)   the functions conferred by section 96 (1A) of the Act,

(k)   the functions conferred by section 96AA of the Act, if the original development application was not determined by a regional panel.

(3)   The council remains the consent authority for development to which this Part applies, subject to the exercise by regional panels of functions conferred on them by this clause.

...

22   Staged development functions for development exceeding minimum capital investment values

If:

(a) development of a class or description included in Schedule 4A to the Act is described in that Schedule by reference to a minimum capital investment value, other minimum size or other aspect, and

(b) development the subject of a staged development application under Part 4 of the Act is development so specified, and

(c)   the relevant regional panel is satisfied that development the subject of a separate development application forming part of the staged development application is part of a single proposed development so specified,

the functions of a council conferred on the regional panel under this Part extend to the determination of the separate development application.

46. Clause 30 of SEPP 65 provides as follows:

30 Determination of development applications

(1)   After receipt of a development application for consent to carry out residential flat development (other than State significant development) and before it determines the application, the consent authority is to obtain the advice of the relevant design review panel (if any) concerning the design quality of the residential flat development.

(2)   In determining a development application for consent to carry out residential flat development, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):

(a)   the advice (if any) obtained in accordance with subclause (1), and

(b)   the design quality of the residential flat development when evaluated in accordance with the design quality principles, and

(c)   the publication Residential Flat Design Code (a publication of the Department of Planning, September 2002).

(3)   However, if the relevant design review panel fails to inform the consent authority of its advice concerning the design quality of the residential flat development within 31 days after the request for its advice is made by the consent authority, the consent authority may determine the development application without considering any such advice and a development consent so granted is not voidable on that ground.

(4)   The 31-day period referred to in subclause (3) does not increase or otherwise affect the period within which a development application is required to be determined by a consent authority.

The Design Code

47. The Court was also referred to the Residential Flat Design Code (“RFD Code”), published by the NSW Department of Planning in 2002 (Exhibit O2, tab 11).

48. Its commentary (at p22/fol 643) on “Building Envelopes” is of relevance to the content of the subject proposal, as considered and determined:

A building envelope is not a building, but a three dimensional zone that limits the extent of a building in any direction. It defines the extent of the overall building zone in plan and section within which a future building can be located. (see image 014.49) The length, depth and height of building envelopes are defined in metres. Building envelopes should be at least 20-25 percent greater than their achievable floor area to allow for building articulation (see Floor Space Ratio).

Building envelopes set the appropriate scale of future development in terms of bulk and height in relation to the street layout and block and lot sizes in a particular location. They are appropriate for determining and controlling the desired urban form in town centres, brownfield sites, master plan sites and special sites – such as areas with extreme topography.

Building envelopes can help:

design the three dimensional form of an area

inform decisions about appropriate density for a site and its context

test that the primary controls are coordinated and produce the desired outcome

communicate and illustrate the future bulk and distribution of new development to planners, councillors and development applicants.

The Development Control Plan

49. The Lane Cove Development Control Plan (“DCP” – Exhibit Y1, tabs 4a – 4j) took effect on 22 February 2010.

50. The Court was referred to its “objectives for site amalgamation and development on isolated sites” (tab 4c, Section B.3, par 3.1, at p7/fol 37) in the part of the DCP concerning General Controls. Those objectives are:

a)   To provide for a development that achieves the required employment and dwelling yields.

b)   To encourage the promotion and co-ordination of the orderly and economic use and development of land.

c)   To encourage site consolidation of allotments for development in order to promote the desired urban design outcomes and the efficient use of land and to avoid the creation of isolated sites.

d)   To encourage the development of existing isolated sites in a manner that responds to the desired built form pattern, site context and maintains a satisfactory level of amenity.

D: The Relevant History

The DA documents

51. The DA (Exhibit A1, tab 1) was lodged on 25 or 26 November 2013, in the name “Turner (contact Kevin Driver)”, for a project described (ASOF 5) as:

Stage 1 Concept Plan application for the redevelopment of the site for the purpose of four (4) residential flat buildings, basement, car parking and on-site landscaping. Approval is sought for the concept plan only and no physical works for this stage.

52. The site area was stated to be 10,479.3 m² (ASOF 2), and the gross floor area of the proposed building 20,435 m², which translates to a FSR of 1.95:1 (fol 27 – ASOF 8).

53. An extensive SEE (Exhibit A1, tab 2 – ASOF 10, [14] above), prepared by “City Plan Services” (City Plan Strategy and Development Pty Ltd – “CPS”), stated (at fols 7 – 10):

This DA seeks approval for a staged development under Section 83B of the [EPA Act]. The first stage of the proposal seeks approval for a concept plan to redevelop the site for the purpose of a residential development complex with four (4) residential flat buildings, basement car parking, on-site landscaping, and a publicly accessible through-site link. The subject application seeks approval for this Stage 1 concept plan, with future detailed DA’s to be submitted for demolition, the detailed design and stage construction of the concept plan.

By way of background, in early 2013, Orca Partners sought to amalgamate the 17 remaining lots in the street block between Birdwood and Finlayson Streets, Lane Cove. Currently, these 17 residential lots comprise single residential dwellings, with the zoning of the land and desired future character of these lots is for high density residential development. The remaining development sites in the street block currently benefit from existing development consents for residential flat buildings and a dental surgery (1 Finlayson Street).

...

In drafting its current controls, Council would have anticipated redevelopment of smaller development sites within the street block, such as continuing the pattern of the approved adjacent RFB’s on Finlayson Street. These controls would not have anticipated amalgamation of 17 of these lots into a development site of over 10,000m². In this context, it is important to consider that whilst an increase in dwellings of approximately 14% greater than anticipated under Council’s controls is sought (245 “indicative” dwellings proposed as opposed to approximately 215 as anticipated by the zone for the subject site), the subject site is capable of absorbing this additional density and has the capability of delivering the aforementioned public benefits.

The current site amalgamation is achievable only by Orca Partners. Should this amalgamation not be maintained, there would be the loss of a significant opportunity to create a better planning outcome for the site. The resultant outcome would likely consist of a piecemeal and inconsistent redevelopment of the land, that would not be able to deliver the east-west through-site link; would unlikely be able to retain significant trees on the site or street though multiple site access points rather than one; would not be able to deliver a consistent building presentation and activation to street frontages; and would unlikely achieve the development yield anticipated by the relevant planning controls. The benefits of this outcome in strategic planning terms are clear in this regard.

The request to vary Council’s maximum height and floor space ratio controls in the [LEP] will have no substantial or detrimental impact on the zone, the surrounding area or Council’s objectives. More specifically, they would enhance the activation of the Lane Cove Town Centre, provide a more sustainable development and broader benefit to the public.

We therefore submit this application to Lane Cove Council on behalf of our Client, and following a detailed planning assessment of the concept plan, we recommend approval of the application. Approval is recommended subject to the mitigation measures outlined in the specialist consultant’s reports accompanying this application and future stage applications for demolition, detailed design and stage construction of the concept plan.

54. The SEE also included site and lot plans, putting the staged project into context (fols 8, 13, 22, and 26), and explained the project thus (fol 21):

The proposal involves the construction of four (4) residential flat buildings on the site, known as Buildings A, B, C, and D, with associated basement car parking, site landscaping, and the provision of a generous through-site link from Coxs Lane to the west of the site and Rosenthal Street to the east of the site. A link through the development from the central courtyard to Finlayson Street is also proposed.

55. Included with the SEE were “Clause 4.6 Variations” for Building Height and FSR, which CPS said (fol 15) were “within the ambit of cl 4.6”.

56. The SEE argued that the objectives of the R4 zone were satisfied by the DA, which, it was also argued, was “generally consistent” with “all relevant provisions” of the LEP (fol 38), against the background of admitted exceedence of the height and FSR stipulations (see fols 72 – 3, 113 – 118, and 130).

57. Detailed justifications for the cl 4.6 variations were presented (fols 118 – 129, and 130 – 146).

The Assessment Process

58. The assessment process – and dialogue among proponent, objectors, consultants, and Council – proceeded during December 2013 and into 2014 (Exhibit A1, tabs 3 – 13, and Exhibit A2, tabs 14 – 50), and a link to the DA documents was provided to JRPP members.

59. For SEPP 65 purposes, Council engaged Tim Williams Architects (Exhibit A1, fol 572, and Exhibit A2, tabs 38 and 46), and the developer of the site at 17-19 Finlayson Street engaged Dan Brindle, of BBC Planners, to object on its behalf (Exhibit A2, tabs 17 and 48).

60. Council also received many other comprehensive submissions, and prepared a summary analysis of the concerns expressed (Exhibit A2, tab 52, and fol 853). CPS responded several times to Council regarding the various issues raised.

61. Council then prepared its Assessment Report for the JRPP meeting to be held on 26 March 2014 (Exhibit A2, tab 53), and followed up with a Supplementary Report (tab 54). CPS was given the opportunity to comment on a draft of the Council report, and did so on 21 March 2014 (tab 51).

62. In response to a detailed letter from Council to Turner, dated 17 January 2014 (Exhibit A2, tab 37), following Council’s “preliminary review” of the DA, CPS made a detailed submission (tab 39) on 3 February, which included some expert reports and amended plans, and undertook to provide some shadow diagrams.

63. In response to a submission which suggested a Planning Proposal as “a better alternative to the subject concept DA and submitted cl 4.6 variation requests”, CPS said (fol 685), inter alia:

• The proposed variation to the height and FSR standards is not any attempt to effect a general planning change to the standards in the wider R4 zone. The variation to the standards for this specific site do not warrant a review of the standards in the wider R4 zone, particularly given the subject concept application clearly demonstrates that it is capable of being designed in future stages to mitigate any adverse environmental impact and given this site represents a unique situation of substantial site amalgamation which is very unlikely to occur “to many sites in the locality” (Wehbe). Given these circumstances, approval of a variation to this standard will therefore not set a adverse planning precedent.

• There are no specific numerical limits to the application of Clause 4.6 of the LCLEP and approval of the proposed variations is within Council’s discretion. The variations are within the realms of what can be reasonably considered under Clause 4.6 and that our written requests for variations to the height and FSR standards adequately address the requirements of Clause 4.6

• The subject application does not disregard the existing height and FSR standards. Rather it undertakes a consideration of these existing standards, but proceeds to undertake a further site-specific analysis of the redevelopment potential of the land beyond that envisaged under the LCLEP and LCDCP as a result of its location (directly adjacent to the town centre) and large site dimensions (including size and frontages, resulting from consolidation of 17 separate allotments, which is unprecedented in the immediate locality) and ultimately, its capacity to absorb additional height and density.

64. CPS relied (at fol 685 quoted above, and fol 686) on Preston ChJ’s decision in Wehbe v Pittwater Council (“Wehbe”) [2007] NSWLEC 827; 156 LGERA 446, which will be discussed below, and then added (fol 686):

With regard to the above, it is reasonably open to Council to consider the proposal as a concept plan DA with Clause 4.6 request to vary the height and FSR standards in the LCLEP. Consistent with the objectives of Clause 4.6 of the LCLEP, application of flexibility to the height and FSR standards for the proposed concept is considered to result in a better planning outcome. The proposed concept plan is unique in that it represents a whole-site approach to redevelopment of the site and permits a series of key opportunities not envisaged by Council’s precinct-specific controls that would otherwise not be available to the site and community if strict compliance with the LCLEP was to be required.

65. CPS made a “further response” to Council’s 17 January letter, on 10 February (tab 43), the main focus of which was the proponents’ solar analysis of its concept plan. Shadow diagrams were enclosed (fols 723 – 728), and discussed in detail. Mr Brindle was critical of the analysis and the diagram (fol 765), and Turner responded (fol 766).

66. Amendment of the building envelope of proposed building “D” was also proposed, and amended plans enclosed (fols 730 – 735), with a request for a meeting with Council. The letter concluded (fol 720):

... this proposed concept plan application offers a range of key benefits that were not necessarily envisaged under Council’s precinct-specific controls for the site. In the absence of any adverse or unreasonable environmental impacts and given the provisions of Clause 4.6 are adequately met, the proposed development is supportable on planning grounds and the proposed variations to the height and development standards are within the ambit of Clause 4.6 of the LEP.

Specifically with regard to the bulk and scale of the development, it is pertinent to highlight that this is a concept plan application. Approval is sought for building envelopes. The difficulty with concept plans is that approval is required to be sought for generous three-dimensional “spaces” within which quality residential design can be achieved. Evidently there are matters to be resolved regarding the detailed design and management of the staged development. This is typical for a concept plan application. However, this application adequately demonstrates the capability of the concept development to be consistent with Council’s requirements and this will be demonstrated in future applications.

67. CPS wrote again to Council on 27 February (tab 47), following a meeting with senior Council officers on 24 February. On the question of the cl 4.6 variations, CPS said (fols 750 – 751):

• The key objective of Clause 4.6 is to allow flexibility in applying development standards to “particular” development to achieve better outcomes for and from development. The variations to the height and FSR standards satisfy the requirements of Clause 4.6 of the LCLEP. The proposal demonstrates a capability of delivering a development that does not result in any adverse or unreasonable environmental impact and results in a better planning outcome for the site, but also, for Lane Cove on a more strategic and long-term basis.

The JRPP Process

68. On 21 March 2014, CPS wrote to the JRPP, copy to Council, in response to the draft of Council’s Assessment Report, which recommended refusal of consent (tab 51). CPS complained (fol 770) that it had received no feedback from Council following the 24 February meeting, and (fol 769) that the draft report raised “so many issues that have either not been raised with us, are not fully addressed or justified, or where we simply have a difference in opinion”.

69. The proponent’s submission to the JRPP included the following passage (fol 769 – 771):

In the first instance, we wish to emphasise that approval is sought for a concept plan only. Approval is sought for building envelopes, a total floor space ration (FSR), building footprints, access points etc. All other matters will be addressed in future detailed DA(s). Whilst approval of such an application will set the parameters for future development applications to be considered, it will be on the onus of the Applicant to demonstrate to the Council and potentially the JRPP, in future applications, that the detailed design of the buildings deliver the “capability” outcomes or “commitments” demonstrated in this application. Such commitments or future requirements may be reinforced through the imposition of appropriate conditions to consent.

It is unfortunate that Council has recommended refusal largely on the basis of the proposed variations to the height and FSR standards. Whilst there are a range of reasons for refusal, as stated in the report, “Council’s principal concern with the proposed concept plan is the variation sought to the LEP with regards to FSR and building height”. Even though height is mentioned as an issue, it is clearly the additional gross floor area of the development that is of greatest concern.

Council incorrectly states that the rationale for the variation to the additional gross floor area relies on “several perceived public benefits...namely the proposed publicly accessible pedestrian through site link”. This is simply not the case and we have made this point on numerous occasions to the Council. Our submissions to-date clearly demonstrate that the Clause 4.6 variation requests stand up to scrutiny in their own right, regardless of the evident benefits of the proposal. These are simply “flow-on” benefits of being able to consolidate and redevelop a site of this size that would otherwise not be feasible on a individual site-by-site basis.

Council also states that “the application fails to quantify the public good offered for the variation to Council’s controls”. This is not a simple case of land dedication in lieu of additional floor space. That is not what the application proposes and one cannot “quantify” the public good in dollar terms offered through the proposed through-site link and “pocket-parks” as a comparison or justification to the proposed variation to Council’s controls. In the circumstances of this case, this is not an appropriate way to determine whether the variations to the controls are supported.

...

The impacts of the development and the height and FSR standard variations have been well considered in the application. We have also considered the relevant provisions of Clause 4.6 of the LCLEP and determine that the variations are warranted. We have also clearly demonstrated that despite Council remaining “unconvinced” as to the value of the development and the link specifically, this should not be a reason to refuse this development which presents a number of key opportunities to be harnessed.

Council’s contentions that there will be unreasonable overshadowing is confusing. It acknowledges that “given the site is immediately north of two properties....it is anticipated that some additional overshadowing would be experienced”. Yet, Council clearly raises concerns regarding the shadows cast. ...

70. The submission attached (at fols 778 – 836) a number of annexures, which included some additional shadow diagrams, and some “technical responses” to the report, prepared by Turner in reply to Williams, and to Council officers. The reply to Williams’s comments included (fol 780 – 783):

SCALE

Where the proposal sits in close proximity to existing or approved buildings, such as Building D to Finlayson Street, the heights follow those of the neighbours to provide a consistency of scale.

The proposed buildings to Birdwood Avenue include all sites for the entirety of the length of the street. Therefore a new context is created as a singular element. The controls anticipate buildings of similar height with a top level setback. The additional height is consistently applied and is mitigated in relation to the buildings behind, as Birdwood Avenue is some 9m lower than Finlayson Street, and so the neighbouring buildings are of a similar comparative height.

Therefore the proposal respects the scale of neighbouring developments and creates a new, holistic streetscape to Birdwood Avenue that is consistent with the intent and objectives of the controls.

The building envelopes are set back from boundaries in a manner that complies with the controls of the site, contrary to the suggestion made in the report.

...

OVER SHADOWING

In the most recent issue of the drawings the height of Building B has been reduced in two locations so as to minimise the shadow effect on 3-9 Finlayson Street, and to ensure that all apartments there achieve a minimum of 2-hours of sun. As a result the shadowing that is produced to the neighbour is from portions of the proposal that are a compliant height. These 5-storey elements are a minimum of 18m from the face of 3-9 Finlayson Street.

None of the apartments of the neighbouring development are continuously shadowed by the proposal as Building B presents slender built form to the rear of the site, so the shadows pass swiftly over the lower face of the building.

The building form generally shadows the neighbour less than would other completely complying building forms.

71. In response to the criticism that the development does not maximise sunlight to the public domain, the Turner submission says (fol 784):

The height of Building D to Finlayson Street has been reduced to 5-storeys in the most recent issue of drawings, so no additional overshadowing is present to this street.

The public pocket parks at the centre of the site receive sun from just after 9am until nearly 1pm during mid-winter. By equinox the public pocket parks receive sunlight all day.

The through site link itself receives sun between 11am and 1pm near the gaps between the buildings. By 2-months either side of the winter solstice much of the link receives sun for much of the day due to the narrow ends of the building facing towards the south.

It is therefore not true to say that the link and pocket parks would be almost completely overshadowed for much of the year.

72. In response to criticism that the proposal does not relate to the topography of the location, especially as some basement car parking protrudes above ground level, the submission says (fol 785):

The car park is either in the ground or fronted by active uses.

In order to negotiate the topography the residential levels are flush with the street (therefore they could not be any lower), and the land then falls away. This only occurs for short runs with a maximum difference in level between the foot path and the interior of around 1.5m. This differential is consistent with the principals of the RFDC[ode] for providing security and privacy at the ground level, and is a natural consequence of the topography.

The large set backs also allow for the landscaping to berm slightly, so the height of any visible wall would be far smaller than this dimension.

This is a typical way in which residential flat buildings relate to the street condition on sites with steep topography.

73. In the Council’s formal report to the JRPP meeting on 26 March (tab 53), the following comments occur in the Executive Summary (at fols 853 – 854):

• Council’s principal concern with the proposed concept plan is the variation sought to the LEP with regards to FSR and building height. The variation to council’s controls results in approximately 2,220.19m² of additional gross floor area. The rationale for this variation relies on several perceived public benefits offered by the applicant, namely the proposed publicly accessible pedestrian through site link.

The application fails to quantify the public good offered for the variation to Council's controls. It is unclear whether adjoining properties would wish to participate in the inferred public access given some sites are currently being constructed and there appears little or no willingness to access what would be a public right of way.

The pedestrian through site link would clearly provide a benefit to the future residents of the subject site. However Council remains unconvinced as to the community value and or benefit of this through site link to other residents and the community generally.

Council does not agree with the applicant's assessment of the impacts to adjoining sites and the precinct generally. Council does not agree with the justification provided by the applicant for the variation to the LEP controls for FSR and height and the public benefit of the pedestrian through-link.

The matters under Section 79C of the [EPA Act] have been considered. The proposal in its current form, with variations to FSR and height, is not considered to be suitable for the site and is not within the public interest.

74. The reasons Council advanced for recommending refusal were as follows (fol 854):

1. The proposal does not meet the aims of [the LEP] in particular aims 2(a), (b), (c), (d) and (f).

2. The proposed development does not comply with Clause 4.3 Building Height and Clause 4.4 Floor Space Ratio of [the LEP].

3. The proposal is not consistent with the objectives of the R4 High Residential zone of [the LEP].

4.   The proposal does not comply with the Part C of the [DCP]:

i.   Locality 2 Finlayson Street in relation to building height

5.   The proposal is inconsistent with the desired and emerging character of the precinct.

6.   The Director General's concurrence is not assumed in this instance.

7.   Given the fundamental and demonstrable non compliances with a range of objections and standards within the Lane Cove LEP, SEPP 65, DCP and the reasons outlined above, the proposal is not considered to be in the public interest.

75. The assessment report quoted several comments made by parties to whom the DA was referred.

76. Council’s “Manager Strategic Planning” was quoted as saying (fol 867):

... the applicable LEP FSR and height controls are new controls which have been applied with consistency to other development applications for residential flat buildings within the same locality.

The Strategic Planner advises that the applicant has not made an adequate planning case to allow the proposed excess height and FSR contained in the concept DA. As the proposed pedestrian through site link is parallel to two existing footpaths and give access to the same parts of the village, it is not considered that the path represents a substantial public benefit.

77. In terms of s 79C(1)(a) considerations, the report said (fol 873) that the proposal “does not meet the zone objectives”, and the heights and FSR proposed do “not ensure the existing amenity of residences in the neighbourhood is respected”. The report, while acknowledging (at fol 875) that the proposal “might be an acceptable outcome”, considers that it is “not a better planning outcome”. The desired outcome for the area is 5 storeys on the Birdwood Ave frontage, as viewed from Finlayson St, not 4 to 7 (fol 878).

78. The Supplementary Council Report (tab 54) summarised and dealt with the proponent’s submission on the draft primary report, as it was published on the JRPP website. This report acknowledged (at fol 892) that, as outlined in the 21 March “amendments”:

1. the GFA was further reduced to 19,380m²

2. the FSR was further reduced to 1.85:1

3. the maximum heights of Building “B” and “D” were further reduced to 25.3m and 20m respectively.

79. Council still did not support the DA. It concluded the supplementary report (at fol 893) as follows:

Council’s principal concern with the proposed concept plan is the variation sought to the LEP with regards to FSR and building height. The amended plans reduce the proposed FSR and building height. The amended proposal does not comply with [the LEP] and Council does not agree with the justification provided.

The matters under Section 79C of [the EPA Act] have been considered. The proposal is not considered to be suitable for the site and is not within the public interest.

The proposal is recommended for refusal.

RECOMMENDATION

That the development application is recommended for refusal for the reasons stated in the original assessment report.

80. Documents regarding the DA were referred to JRPP members by email dated 17 January 2014 (Exhibit Y1, tab 1), and three panel members attended a briefing meeting with Council staff on 21 January (tab 2). Late in the hearing before me (Tp95), Yifang tendered a folder containing the documents referred to in the members’ SORs (Exhibit Y2).

The JRPP Decides

81. The minutes of the JRPP meeting on 26 March 2014 are before the Court (Exhibit A2, tab 56). The relevant part of the minutes of the meeting that dealt with this DA is reproduced below:

MINUTES OF THE SYDNEY EAST

JOINT REGIONAL PLANNING PANEL MEETING

HELD AT LANE COVE COUNCIL

ON WEDNESDAY 26 MARCH 2014 AT 4.00PM

PRESENT:

John Roseth    Chair

David Furlong    Panel Member

Julie Savet Ward    Panel Member

Trevor Bly    Panel Member

Soo-Tee Cheong    Panel Member

IN ATTENDANCE

Rebecka Groth    Lane Cove Council

Rajiv Shanker   Lane Cove Council

APOLOGY: NIL

1.   The meeting commenced at 4.00pm

2.   Declarations of Interest -

Nil

3.   Business Items

ITEM 1 - 2013SYE105 – Lane Cove - DA13/194 - Stage 1 Concept plan - 2-22 Birdwood Ave & 1-15 Finlayson Street, Lane Cove

4.   Public Submission -

Darren Waters    Addressed the panel against the item

Dan Brindle    Addressed the panel against the item

Nick Turner    Addressed the panel on behalf of the applicant

Paul Walter    Addressed the panel on behalf of the applicant

Melanie Freelander    Addressed the panel on behalf of the applicant

Kevin Driver   Addressed the panel on behalf of the applicant

5.   Business Item Recommendations

ITEM 1 - 2013SYE105 – Lane Cove - DA13/194 - Stage 1 Concept plan - 2-22 Birdwood Ave & 1-15 Finlayson Street, Lane Cove

1.   The majority of the Panel (for: John Roseth, David Furlong, Julie Savet-Ward and Trevor Bly; against: Soo Tee Cheong) resolves that it would approve the amended application submitted on 21 March 2014, subject to a set of suitable conditions.

2.   The Panel has considered the planning assessment report and the supplementary report, both of which recommend refusal, mainly on the grounds that the proposal does not comply with the FSR and height controls. However, the Panel has given major weight to the benefit of the site amalgamation and the consequential opportunities for good site landscaping as well as the simplification of parking and vehicular entry/exit. In the majority Panel's view, the public benefit of this amalgamation is commensurate with the relatively minor non-compliance with the FSR control. As concerns the additional height above 18m, the Panel notes that parts of the proposal are below 18m and that the top storey is well recessed.

3.   The Panel wants it to be noted that its acceptance of non-compliance in this case should not be regarded as a precedent for other developments. The value of this amalgamation is that it brings the entire block into redevelopment, ensuring that no isolated pockets of single housing are left.

4.   The Panel requests the planning assessment officer to prepare, by 11 April 2014, a set of suitable conditions. Following receipt of these conditions, the Panel will determine the application by communicating by electronic means.

5.   Soo Tee Cheong voted against the proposal on the grounds of non-compliance with the height control, which, in his view, had a negative impact on Birdwood Avenue and Rosenthal Street.

...

The meeting concluded at 6.50pm.

Endorsed by

John Roseth

Chair, Sydney East

Joint Regional Planning Panel

26 March 2014

82. Mr Tomasetti submitted that the only other item on the JRPP agenda at that meeting was likely to be relatively short, and that the Court should conclude that by far the majority of the three hour meeting would have been occupied by dialogue regarding this DA among the experts on the JRPP.

83. As specified in par 4 of those minutes, a draft set of conditions was prepared for the JRPP (tab 55), and CPS provided detailed comments on them to Council on 8 May (tab 57). Council sent to the JRPP a set of responses to those comments, on 22 May (tab 58).

84. There has been some criticism of Council in respect of its delay in producing draft conditions, including by JRPP Chair, Dr John Roseth (Exhibit O1, tab 6, fol 580). Council explained to the Department of Planning on 15 April (Exhibit O1, tab 5, fol 578):

We were not anticipating the final decision and staff need time to consider not only the draft conditions to be imposed but also the structure of the draft approval and that this concept approval will call for further development applications at each stage of development. At this stage I estimate, given other JRPP reports being prepared, the earliest return time for a draft consent would be early May.

85. The JRPP’s “Record of Decision” dated 4 June 2014 is before the Court (Exhibit A2, tab 59), and states:

RECORD OF DECISION

THE SYDNEY EAST JOINT REGIONAL PLANNING PANEL

Members:

John Roseth   Chair

David Furlong   Member

Julie Savet Ward   Member

Apology: Nil

The Regional Panel considered the following application via emails and this is a record of the process and decision.

Business Item

ITEM 1 - 2013SYE105 – Lane Cove - DA13/194 - Stage 1 Concept plan - 2-22 Birdwood Ave & 1-15 Finlayson Street, Lane Cove

On 7 May 2014, the Regional Panel Secretariat circulated the Council's conditions and minutes of Panel Meeting on 26 March 2014 to panel members and requested confirmation of the panel member's (sic) decision on the application.

Panel members confirmed their decision via email between 7 May 2014 and 3 June 2014.

All Panel members are in favour of approving the application subject to conditions provided by council except as follows:

1.   There is no requirement for affordable housing in any statutory plan or policy relating to this site, nor was this sought by Council in its consultations and assessment. This condition is to be removed and is not approved by the Panel;

2.   The Council DCP contains a housing mix as a guide, while the approval is a concept (Stage 1) plan and will be the subject of further "project" DAs. The mix of units is best determined at that subsequent DA stage as part of a merit based assessment. The detailed unit design across the site has not yet been determined and therefore the Panel cannot agree to impose limits at this stage;

3.   The condition stating Council's minimum requirements for car park entry floor to ceiling heights and waste facility requirements is to remain and these will have to be met in conjunction with future DAs or altered on a merit assessment at that time.

Endorsed by

Dr John Roseth

Chair, Sydney East

Joint Regional Planning Panel

4 June 2014

The JRPP’s Reasons for Decision

86. The JRPP decisions speak for themselves, but those members who participated have each provided a SOR (Exhibit A4, being tabs 9 to 13, fols 72 – 116, of the Court Book). Some biographical information on some of the panellists can be found on the JRPPs’ website, and a copy is attached to Ku’s affidavit (as Annexure ‘A’). Several of them are known to the Court.

87. The Panel voted 4:1 in favour of the DA, subject to conditions as described in the Record of Decision dated 4 June, and their SORs follow a standard form, recording the relevant details of the item before the panel, the evidence and other material considered by it, the reasons of the majority and of the minority, the Council’s recommendation, the meetings and inspections held, and all the “relevant mandatory considerations”.

88. The most pertinent elements of each SOR, including that of the minority member (Exhibit A4, tab 13), are (Exhibit A4, fols 73, 82, 91, 100, and 109):

9	Relevant mandatory considerations	Environmental planning instruments: • SEPP (BASIX) 2004 • SEPP 65 – Design Quality of Residential Flat Development • Lane Cove LEP 2009 Draft environmental planning instruments: none applicable Development control plans: Lane Cove DCP Planning agreements: none Regulations: none The likely impacts of the development, including environmental impacts on the natural and built environment and social and economic impacts in the locality The suitability of the site for the development Any submissions made in accordance with the EPA Act or [EPA Reg] The public interest
10	Evidence and other material considered by the panel	Council Assessment Report and Supplementary Report Correspondence attached to Agenda and Business Paper 26 March 2014, including Council referrals and public submissions Letter on behalf of proponent dated 21 March 2014 and annexures, including amended plans
11	Meetings and site inspections by the panel	Panel met with Council officers on 22 January 2014 Panel meeting 26 March 2014 Email communications between panel members between 7 May 2014 and 3 June 2014

89. All the documents before the JRPP (listed in SOR item 10) are included in Exhibits A1 and A2, and some are duplicated elsewhere in the evidence. (See also Exhibit Y2)

The JRPP Determination is Issued by Council

90. On 16 June 2014, pursuant to ss 80(1)(a) and 83B of the EPA Act, Council issued the official Notice of Determination of the “staged” or “concept” DA, as it had evolved (Exhibit A2, tab 60), together with a stamped approved plan (that at tab 61), reflecting that evolution (c.f. Exhibit A1, fol 196). The consent was stated (at fol 934 and on the plan) to operate from 4 June 2014, and to lapse on 4 June 2019.

91. For completeness, I now set out the relevant parts of Council’s Notice of Determination signed off by Michael Mason, Executive Manager, Environmental Services, and issued on 16 June 2014 (tab 60). (I have omitted those conditions clearly not implicated in the present challenge, namely 10 to 54):

Dear Sir,

Notice of Determination of Development Application issued under the Environmental Planning and Assessment Act 1979, Section 80(1)(a) and Section 83B

Staged Development Application No.: DA 194/13

Address: 2-22 Birdwood Avenue and 11-15 Finlayson Street, Lane Cove

Proposed Development: Stage 1 Concept DA for residential flat development.

You are advised that the abovementioned Staged Development Application has been determined by the Sydney East Joint Regional Planning Panel at its meeting of 26 March 2014, with confirmation of their decision dated 4 June 2014, when it was resolved that the application be approved subject to the following conditions:-

GENERAL

1.    Development consent is granted to staged development application No. DA13/194 that sets out a concept proposal for the development of the land known as 2-22 Finlayson Street and 11-15 Birdwood Avenue, Lane Cove comprising of the 17 lots listed below ("the site") for the purpose of four (4) residential flat buildings with combined basement car parking, on-site landscaping and a pedestrian through site link subject to compliance with the following conditions:

   Lot 81 DP10155

   Lot 82 DP10155

   Lot 831 DP844967

   Lot 832 DP844967

   Lot 84 DP10155

   Lot 85 DP10155

   Lot 86 DP10155

   Lot 87 DP10155

   Lot 88 DP10155

   Lot 892 DP855900

   Lot 891 DP855900

   Lot 502 DP868066

   Lot 501 DP868066

   Lot 91 DP10155

   Lot 75 DP10155

   Lot 76 DP10155

   Lot 77 DP10155

2.   This consent does not authorise the carrying out of development on any part of the site unless consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site.

3.   While this consent remains in force, the determination of any further development application in respect of the site cannot be inconsistent with this consent.

4.   This development consent will lapse 5 years after the date of the determination unless consent is granted to a further development application in respect of the site to carry out development on the site that is consistent with this consent and the development authorised by that consent has commenced on the site.

5.   All buildings that are proposed to be erected on the site must be contained wholly within the concept building envelopes shown in drawing number MP100-001 Rev S2 prepared by Turner and dated 20/03/2014, except as amended by the following conditions.

6.   A detailed staging plan showing the development to be carried out on the site in a sequential manner must form part of the first further development application.

7.   The combined floor space ratio for all buildings on the site must not exceed 1.85:1 and the maximum number of dwellings that may be constructed on the site must not exceed 245.

8.   Any residential flat building that is proposed to be erected on the site must be designed in accordance with:

(a)   the design quality principles in [SEPP 65]; and

(b)   the publication [RFD] Code (a publication of the Department of Planning, September 2002); and

(c) the relevant provisions of [the LEP]; and

(d)   the relevant provisions of [the DCP]

except where modified by this development consent.

9.   Any residential flat building that is proposed to be erected on the site must:

(a)   be designed with sufficient modulation and articulation and ensure quality and definition to the street frontage; and

(b)   be designed to ensure that the Crime Prevention Through Environmental Design principles are met.

...

55.   Each further development application will assess each proposal having regard to prevailing provisions at the time.

Advisory Note:

...

The reason for the Council's consent being subject to the aforementioned conditions is to ensure that the proposal complies with the requirements of the [EPA Act] and Regulations thereunder and the Building Code of Australia and does not adversely effect the amenity of the area and/or the character of the neighbourhood.

This consent is to operate from 4 June 2014.

This consent is to lapse on 4 June 2019.

...

92. The plan to be incorporated by condition 5 (drawing MP 100 – 001 Rev S2) is included in the applicant’s material (Exhibit A2, tab 61) and also in Orca’s (Exhibit O1, tab 4, fol 566).

93. The DC, as conditioned, does not authorise the carrying out of “development” (in the sense of physical works, or the use of land). The DA and the negotiations regarding its modification/evolution were quite specific in this respect. Hence, the DC endorses a “concept proposal” which may be pursued only by a series of further DAs which “cannot be inconsistent with” the effect of the consent to the concept proposal (including in terms of any dispensation it granted in respect of applicable development standards).

236. Mr Galasso pointed to the absence of evidence regarding the JRPP’s consideration, including in the minutes of its meeting (set out above at [81]), referencing the objectives of either the R4 zone, or the standards (par 83).

237. He also pointed to the SORs provided by the relevant members of the JRPP who came to support the proposal (Exhibit A4, fols 72 – 107). Those SORs all took the same form, and the salient parts have been set out above (at [88]). It was submitted that, like the minutes, the SORs fail to demonstrate that the JRPP expressly considered the relevant considerations, and excluded the consideration of irrelevant matters. Mr Galasso submitted (Tp42, LL30 – 47):

Consistent with the submissions we made before the adjournment, this statement of reasons, and the matters that we set out in the written submission, this statement of reasons, not just because it's after the summons was filed, but even in a vacuum, doesn't convert or alter the submissions we make insofar as it purports to cover the field or throw a net over everything as it were in para 9, or by reference to paragraphs or items 7, 10 and 11 in the schedule.

It is irrelevant and beside the point in the circumstances of this case to simply advert, which is the high water mark of the position, to the Lane Cove LEP 2009, without appropriately, in our submission, specifically identifying and addressing the relevant considerations, or appropriately eschewing the irrelevant considerations evidenced in the minutes, and that submission would stand even but for the reasons of the panel majority, however, your Honour sees that in the reasons of the panel majority at folio 72, which is repeated for all of the majority, and for that matter, even the minority, the specific references given to the minutes dated 26 March 2014, and the record of decision of 4 June 2014.

238. In response, Mr Tomasetti submitted (par 29) that the onus remains on the Council to prove that there has been a failure to consider a mandatory relevant matter. The proceedings are not merits review, and, where “direct proof is not available…[the challenger] must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture”: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at 5. The decision of the JRPP must be considered in its context, and “the inference should be drawn that the JRPP is very familiar with clause 4.6 when determining state and regionally significant development” (par 27, citing Schroders Australia Property Management Ltd v Shoalhaven City Council (“Schroders”) [2001] NSWCA 74, at [60] – [64]).

239. Given the fact that clause 4.6 was a focal point of the DA in the present case, and the material accompanying the DA expressly dealt with the relevant issues, it cannot be inferred that the JRPP did not consider the relevant matters (subs par 30).

240. Centro Properties Ltd v Hurstville City Council (“Centro”) [2004] NSWLEC 401; 135 LGERA 257 involved a development proposal for the erection of a mixed use cinema/retail complex with associated car parking. The Council’s decision to grant conditional consent to the application, under s 80(1) of the EPA Act, was challenged on the basis that it failed to take into account a number of relevant considerations relating to noise, and the requirements of an applicable DCP and LEP (at [11]). In determining to declare the consent invalid, McClellan ChJ relevantly said (at [35]):

When a challenge to a decision is made, the task of a court is to determine whether the challenger has discharged the onus of proving that the council has failed to consider a relevant matter of such significance that it justifies the court's intervention, taking care to ensure that the review proceedings do not become a review of the merits of the relevant decision: see the discussion by Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601; 115 LGERA 373 at 375.

241. His Honour usefully summarised the following principles in respect of challenges to administrative decisions made on allegedly improper basis (at [37] – some citations omitted):

•the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried;

•when exercising its decision-making power, an administrative body must give “proper, genuine and realistic consideration” to the merit of the matter: ... Mere advertence to a matter may not be sufficient: ...

•a failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues: ...

•legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development;

•generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it;

…

•when it comes to a consideration of whether the decision-maker has properly weighed up relevant considerations which it has itself identified, a court must proceed with caution “lest it exceed its supervisory role by reviewing the decision on its merits”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42;

•where there is no direct evidence of a consent authority's consideration of a matter, it may be difficult for a challenger to establish a failure to consider a relevant matter or consideration of an irrelevant matter. Confined to drawing an inference, that inference should only be drawn after anxious consideration: ...

•although the decision-maker “can take account of a relevant consideration by reference to a previous decision … this does not mean that it does not have to address the issue itself” and the previous decision must “be enlivened in the consideration of the application before it for decision”: ...

242. The Council in Centro attempted to rely on the “principle of regularity” in defence of its decision. That principle “raises a rebuttable presumption of law that official acts are presumed to have been done rightly and regularly” (at [57]). It was submitted that it “may be presumed that the Council has considered all relevant matters when making its decision” (at [59]), because there is no evidence to the contrary (at [57] – [59]). His Honour rejected that submission, stating (at [60]):

In my opinion, reliance on the presumption of regularity in this case is misplaced. As Ipp J explained in Selby v Pennings (1998) 19 WAR 520 at 528; 102 LGERA 253 at 261 (with whom Owen J agreed at 548; 282), the presumption applies “only to matters of form, rather than of substance. Essentially, the presumption is that the formal requirements of judicial or administrative acts which are good in substance have been met.”

243. Currey v Sutherland Shire Council (“Currey”) (1998) 100 LGERA 365 was an appeal of the Court of Appeal from a decision of Pearlman ChJ, who declined to draw an inference that the Council had failed to consider mandatory relevant factors, which dealt with the approval of development in contravention of a “foreshore building line” that prohibited structures being built between that line and the tidal waters. Her Honour determined that the material that was before the Council, namely an officers’ report and annexures, was sufficient to enable it to address the requisite matters, and that the inference should not be drawn that those matters were not considered by the Council.

244. The Court of Appeal said of Her Honour’s decision (per Stein JA, with whom Mason P and Handley JA agreed, at 370-1):

I turn to her Honour's judgment. Pearlman J correctly found that unless cl 19(6) applied, the council was required to refuse the application or be satisfied that the boatshed would be removed. She noted that neither the development application nor the council officer's report furnished to the council, made any reference to cl 19(5) and (6). Nor was any condition imposed in the consent requiring the removal of the boatshed.

Her Honour observed that the officer's report contained a discussion of the issues arising on the application, annexed a history of the preceding applications and a copy of a judgment of Talbot J in previous proceedings. She noted that Talbot J had refused a four-lot subdivision for the same site but approved a separate application for the construction of a new dwelling on lot 410 and the renovation of the existing boatshed.

The judge continued:

“The council officer's report and its annexures contained the following references to cl 19 and the boatshed and residence:

•Under the heading ‘Statutory Consideration’, the council officer noted that the site is ‘ … affected by a 30 metre Foreshore Building Line pursuant to Clause 19 [of the LEP] … ’;

•The council officer referred to the annexed judgment, noting that Talbot J had granted development consent ‘for the erection of a new residence and renovated boatshed’;

•The summary of the history of the site also drew attention to the development application to which Talbot J had granted consent, noting that it was ‘for the construction of a new dwelling and renovation of the existing boatshed’;

•In the judgment, Talbot J noted, at p 10, that ‘the existing boatshed will be reduced in shape and size … ’”

Her Honour concluded that there was material before the council which would have enabled it to be satisfied that requiring removal of the boatshed was not necessary to achieve the objective in cl 19(1)(c). She added:

“That material consisted of the references in the council officer's report to renovation of the boatshed by reduction in size, as well as the councillors' general knowledge of the provisions of the LEP, the history of development of the site and of the content of previous development applications.”

In declining to draw the inference that the council failed to address cl 19(5) and (6) of the LEP, Pearlman J noted the reference in the officer's report to the site having a foreshore building line pursuant to cl 19 of the LEP. This led to a presumption that the contents of cl 19 was within the general knowledge of the councillors. Her Honour cited Parramatta City Council v Hale [(“Hale”)] (1982) 47 LGRA 319 at 345 and Somerville v Dalby [(“Dalby”)] (1990) 69 LGRA 422 at 429 . Consequently, in her Honour's opinion, council must be taken to be aware of the relevant provisions of the clause.

245. The Court overturned Pearlman ChJ’s decision, finding that, without more, the officers’ report and its appendices, did not provide material which favoured the inference drawn by Her Honour. Stein JA noted the relatively scant attention that was given to cl 19, by the officers’ report, and said (at 373):

Accepting the reference by Moffitt P [in Hale] to a council's “general knowledge” and Hemmings J's [in Dalby] mention of councillor's “individual expertise and local knowledge”, two remarks pertinent to this appeal may be made. First, other than the report and its appendices, there was no evidence of what occurred at the council meeting or what other knowledge any councillor might have brought to the application. Secondly, while it may be reasonable to assume that councillors will have a general knowledge of their principal planning instrument, there is no reason to assume that such knowledge will extend to the detail of a provision such as cl 19 of the LEP or the processes to be traversed in order to apply cl 19(5) and (6).

246. His Honour concluded (at 375):

Was it enough that the officer's report contained a reference to cl 19 and the foreshore building line? In my opinion, it was not. Without some elucidation of the relevance of cl 19 to the application and the need to consider the existing two-storey boatshed in the context of cl 19(5) and (6), the bare reference to cl 19 was capable of misleading the council in its required task. This is principally because the report failed to refer to the prohibition in cl 19(5).

Indeed, it may be observed from my earlier discussion of the report, that cl 19 was never identified as an issue for the council. Far from it, any councillor coming to the report (read with the appendices) would be likely to assume that there was no issue arising under cl 19 necessary to be addressed. Councillors would most likely be unaware of the prohibition contained therein or of the need to consider the possible exception under cl 19(6). Both cl 19(5) and (6) require the council to be satisfied. The rolled-up conclusion to the report would also be likely to lead members of the council to believe that the application complied with the LEP. There is, in fact, nothing in the report or its appendices to alert the council to the need to address cl 19(5) and (6) (in order to overcome the prohibition in cl 19(5)) before proceeding to assess the merits of the application.

In my view, the inference should be drawn that the council failed to address the precondition in cl 19(5). Accordingly, the prohibition operated and the development was prohibited under s 91(2) of the Act. The council simply adopted the officer's recommendation which did not frame the question necessary to be addressed.

247. In Schroders (see [238] above), unlike Currey, the Court of Appeal (per Ipp AJA, with whom Spigelman CJ and Sheller JA agreed) upheld Pearlman ChJ’s decision in this Court, dismissing a challenge to a conditional consent by a council for the construction of a shopping centre in Nowra.

248. It was a condition precedent to a valid grant of consent that the Council form an opinion that the development was consistent with the objectives of the relevant zone, and the appellant contended that the Council had failed to properly form such an opinion. Council had engaged a planning consultant (GSA), which advised that the proposal was not inconsistent with the objectives of the relevant zone. The appellant submitted “that the Council accepted the advice given in the terms submitted and did not, independently, apply its mind to the issue” of whether the proposal was consistent with the relevant objectives. Ipp JA rejected this submission, saying (at [60] – [63]):

60 Regard must be had to the context in which councillors would have read the GSA report. At the outset, there can be no doubt that councillors would have recognised the consistency issue as an important question. Pearlman CJ correctly observed in this regard:

“Clause 9(3) of the LEP is a conventional type of clause. It has appeared in the LEP since the LEP's adoption in 1985 (although it was amended in a minor way by Amendment No 70 in 1993). It applies to all development in all zones under the LEP. The inference must be drawn that clause 9(3) had been applied by the Council regularly and frequently.”

61 Moreover, the consistency issue had been very much alive from the time the application was first lodged. It had been raised by Council officers at the outset and was frequently thereafter discussed by them. Various members of the public made submissions in regard to the consistency issue, both orally, at public meetings, and in writing. It is sufficient to refer to what was said at the meeting of 19 March 1998 (to which I have referred above) and in the written submissions from Mr Cox, Mr Bishop, the Gray family and Mr Jones. The Council had responded in detail to the questions and the submissions. The consistency issue formed an important part of the detailed submissions of Fabcot and Schroders and their respective consultants. Objections based on absence of consistency formed part of annexure 4 to the GSA report.

62 Consistency was regarded by GSA as an issue of such complexity that it was desirable for the Council to obtain legal advice in regard thereto. The Council agreed, hence the obtaining of Mr Webster's opinion.

63 Against this background, there is a powerful inference that councillors would have read the GSA report with the consistency issue very much in their minds and with a full understanding of the importance of the opinion required under cl 9(3).

249. The question in Schroders was whether a consent authority independently turned its mind to a question on which it was required to form an opinion.

250. That is a different question from that to be determined here, which is whether the JRPP applied the right test when reaching a state of satisfaction on a question on which it is required to form an opinion. Despite this, Ipp JA’s comments are illustrative of the inferences which can and should be drawn from material that is before a decision maker, and, therefore, are useful in my determination of these four grounds.

251. In my opinion, based on the material that was before the JRPP, the inference should not be drawn that it failed to consider the consistency of the proposal with the objectives of the standards and of the R4 zone.

252. Unlike Currey, where the negative inference was drawn, it cannot be said that the material before the JRPP made only a “bare reference” to the relevant provision, or that the relevant consideration “was never identified as an issue for the decision maker”. Nor can it be said that there was nothing in material before the JRPP to alert it to the need to address the particular matters raised under cl 4.6(4) (see [30] above).

253. On the contrary, the JRPP had before it detailed written requests which dealt directly with the relevant matters to be determined under cl 4.6(4)(a)(ii) with respect to both standards (see [128] – [169] above). The detailed requests were supplemented by further submissions made on behalf of Orca, which specifically sought to demonstrate how the relevant objectives of both the standards and the zone were met, despite the non-compliances. They were supported by technical reports, including shadow diagrams, illustrating the minimisation of impacts flowing from the proposal (see [217] – [219] above).

254. The Council’s primary concern with the development proposal was identified by the JRPP as the proposed non-compliances with the FSR and height standards. Council’s primary and supplementary reports both indicated that the Council did not agree with the justifications the proponent advanced for the contraventions (see [74] and [79] above). Also, a large majority of the public submissions critical of the proposal raised concerns in respect of the proposed non-compliances. (See summary of objections at Exhibit A2, fols 838 – 850).

255. Given this, the inference which should be drawn is that the proposed non-compliances with the height and FSR standards were at the forefront of the debate before the highly qualified panel – “there could be no doubt that the [JRPP] would have recognised the [compliance] issue as an important question”: see Schroders ([238] above). The JRPP would have been familiar with the terms of cl 4.6, particularly as the requests provided by Orca addressed in detail the matters to be dealt with under cl 4.6(4), including the issue of public interest, and how the proposal was consistent with the relevant objectives (see [144] – [147] above). Accordingly, the issue of the variation requests, and the requirements under cl 4.6, would have been “very much alive from the time the application was first lodged”: see Schroders ([238] above).

256. Unlike the situation in North Ocean Shores, where Preston ChJ observed that the material before the decision maker did not “provide an evidentiary basis for a conclusion that the proposed development” satisfied the objectives of the relevant zone, the JRPP had before it here extensive material which provided an evidentiary basis for concluding that the proposal satisfied the objectives of both the R4 zone and the standards, and was, therefore, in the public interest (see [128] – [169] above).

257. For these reasons, the Court cannot and does not infer that the JRPP failed to consider the relevant matters when determining whether the proposal was in the public interest.

258. In response to the claim, on the other hand, that the JRPP took into account irrelevant matters, Mr Tomasetti submitted (par 31) that where, as here, the JRPP’s discretion to grant the non-complying consent pursuant to cl 4.6 is unconfined, the matters it can take into account are similarly unconfined: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (“Peko-Wallsend”) [1986] HCA 40; 162 CLR 24. As such, (par 32), the JRPP would be bound to ignore the consideration of the general benefits of the proposal, such as site amalgamation and the simplification of parking and traffic, only if they were made expressly, or by necessary implication, “extraneous considerations to the exercise of the power to determine the application”: Carstens v Pittwater Council [1999] NSWLEC 244; 111 LGERA 1; Peko-Wallsend, at 40.

249. It was alternatively submitted (par 33 – 35) that the issues of site amalgamation, and the simplification of traffic and parking, are matters which are called up for consideration by the objectives of the R4 zone, and are, therefore, relevant considerations.

250. I agree with this alternative submission for the following reasons.

251. Relevantly, one objective of the R4 zone (set out in [20] above) is “to avoid the isolation of sites resulting from site amalgamation”, and the requests asserted that the proposal would avoid the future isolation of sites as it “will mitigate any potential isolation” that could occur if the land were developed in an ad hoc, site by site, manner (see [163] above).

252. As to the simplification of traffic, it was said “that a single vehicular access point for the development will improve the surrounding road network and general safety and allow for the retention of existing mature street trees which are a dominant character of the area” (see [147] and [167] above).

253. The JRPP’s consideration of such benefits is a relevant consideration in respect of a number of the objectives of the R4 zone, namely, ensuring the “amenity of the existing residences in the neighbourhood”, and facilitating the provision of a “high concentration of housing with good access to transport, services and facilities” (see [20] above).

254. For those reasons it cannot be said that consideration of the benefits of site amalgamation, and the simplification of traffic and parking, are irrelevant to the JRPP’s inquiry under cl 4.6.

255. Grounds 5 to 8 must also fail.

Grounds 9 and 10

266. Grounds 9 and 10 assert that that the JRPP could not have been satisfied that the written requests “adequately addressed” the matters listed in cl 4.6(3), because the application was only for a “concept approval”, with final details left to be determined in subsequent DAs. Accordingly, there was not enough information before the JRPP to reach a state of satisfaction as to whether the proposal was consistent with the objectives of the height and FSR standards notwithstanding the non-compliance, and, therefore, compliance with them was unreasonable or unnecessary in the circumstances.

267. Based on my findings as to the evidentiary material before the JRPP (see [207] – [228] above), these grounds must also fail. Although the application was for only a “concept approval”, with “many details to be addressed at a later stage”, in my opinion the detailed written requests, and the technical information provided in support of them, contained more than enough information to enable the JRPP draw the relevant conclusions under cl 4.6(4).

Grounds 11 and 12

268. Grounds 11 and 12 allege that there was no concurrence granted by the Director-General to the JRPP as the “consent authority”, and that, accordingly, the JRPP could not be satisfied that such concurrence had been granted, as required under cl 4.6(4).

269. Pursuant to the EPA Regulations, the Director-General may issue a written notice to a consent authority that permits it to assume that concurrence has been given (cl 64 – see [40] above). The department issued a planning circular to local councils on 9 May 2008 (set out above at [32]) that stated that they could assume the Director-General’s concurrence in respect of cl 4.6 variation requests.

270. Mr Galasso submitted that, as this circular was addressed to Councils, and not to the JRPP, who was the relevant consent authority in the present case, the JRPP was not entitled to assume that concurrence had been given, and hence could not be satisfied, as it was required to be, pursuant to cl 4.6(4)(b), that it had been given.

271. In response to this assertion, both Orca and Yifang relied upon submissions contained within a letter sent by the solicitor representing the JRPP (Ms Sims) to the Council’s lawyers, on 1 October 2014, i.e. after these proceedings had been commenced, urging them to withdraw these grounds.

272. The subject letter was annexed to the written submissions filed on Orca’s behalf on 3 November 2014 (see [12] above). It asserted in plain terms that, “Contrary to the applicant’s argument, Lane Cove Council was the consent authority for the purposes of obtaining concurrence in respect of the development”, so the planning circular was sufficient to satisfy the requirements of cl 4.6(4)(b).

273. The letter set out the relevant provisions, and then said that:

... the following propositions are clear:

(a)   while the Sydney East JRPP had the function of determining the [DA], and was the consent authority to the extent of exercising that function, it did not have the function of obtaining the concurrence of the Director-General. The Sydney East JRPP was not the consent authority for all purposes in relation to the development application;

(b)   while Lane Cove Council was not the consent authority in the sense of exercising the function of determining the application, it was otherwise the consent authority for the development in question, including in relation to exercising the function of obtaining the concurrence of the Director-General for the development;

(c) the assumed concurrence issued to Lane Cove Council by the Director-General in May 2008 was effective written notice given to the consent authority, for the purposes of cl.64(1) of the Regulation;

(d) the condition in cl.4.6(4)(b) of [the LEP] was satisfied because the concurrence of the Director-General was obtained by the consent authority with the function of obtaining such concurrence.

274. For the reasons that follow, I agree with those propositions, and the assertions of the active respondents on this point.

275. Clause 21(1)(a) of the SEPP-SRD (set out above at [45]), operates so as to grant the JRPP the power to exercise the DA determination function of the Council.

276. However, subclause 21(2) expressly limits what council functions are conferred on the JRPP. Relevantly, (2)(a) provides that the function of obtaining concurrence from the Director-General, pursuant to s 79B of the EPA Act, is not conferred on the JRPP, and it thus remains a function of the relevant council. Subclause (3) expressly states that the Council remains the consent authority for development, subject to the exercise by regional panels of functions conferred on them by cl 21.

277. In my opinion, it is clear from cl 21 that the Council remained the consent authority for the DA, and that it retained the function of obtaining concurrence from the Director-General in respect of the proposal.

278. By virtue of the circular, this concurrence could properly be assumed by the Council, and, accordingly, concurrence of the Director-General was indeed obtained in respect of the development. In those circumstances, it was open to the JRPP to be satisfied that it had been obtained, pursuant to cl 4.6(4)(b).

279. Grounds 11 and 12 also fail.

H: Conclusion and Orders

280. It follows from all I have written that I find that the Council has failed to make out any of its grounds of challenge, and, as Yifang contends, the written requests and the JRPP’s assessment of the proposal were lawful.

281. Accordingly, it is unnecessary for me to address the “fall-back” argument put forward by Mr Miller on behalf of Orca (see [108] above).

282. Having lost its challenges, Council should normally be expected to pay the costs of its successful contradictors.

283. Most of the thirty respondents submitted, except on the question of costs, but, of the contradictors, Orca was silent on the costs issues, and Yifang submitted that costs should follow the event (Tp99), subject to possible apportionment if the Council succeeded (subs 42 – 43).

284. Mr Galasso submitted for the Council (Tp104) that, if the Council succeeded, it should get its costs, but, if its challenge failed, costs should be reserved.

285. In those circumstances costs will be reserved, but the parties (including the JRPP, if appropriate) are encouraged to negotiate.

286. I make the following orders:

1. The applicant Council’s amended summons is dismissed.

2. Costs are reserved.

3. The Court Book, including Exhibit A4, is to remain in the Court file, but all other exhibits are returned.

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Decision last updated: 08 April 2015