Markham Real Estate Partners Pty Ltd ATF M7 Property Trust v Council of the City of Sydney

[2024] NSWLEC 1301

Land and Environment Court

New South Wales

Medium Neutral Citation:

Markham Real Estate Partners Pty Ltd ATF M7 Property Trust v Council of the City of Sydney [2024] NSWLEC 1301

Hearing dates:

Conciliation conference 21 May 2024

Date of orders:

05 June 2024

Decision date:

05 June 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to Development Application No. D/2022/476 for the installation and use of a mooring facility with associated services and access at 23 and 23A Hickson Road, Millers Point, also known as Lots 8 and 9 in Deposited Plan 1018716, subject to the conditions of consent at Annexure A.

(3) The applicant is formally allowed to file the plans and documents referred to in Annexure B.

(4) The applicant is to pay those costs of the first respondent that have been thrown away as a result of the amendment of the application development consent referred to in the Notation at [36], pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $15,000.00 payable within 28 days from the date of these orders being made.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – designated development – mooring facilities – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Precincts - Eastern Harbour City) 2021

Category:

Principal judgment

Parties:

Markham Real Estate Partners Pty Ltd ATF M7 Property Trust (Applicant)
Council of the City of Sydney (First Respondent)
The Owners of Strata Plan No. 70335 (Second Respondent)

Representation:

Counsel:
A Hemmings (Applicant)
A Simpson (Solicitor) (First Respondent)
J Smith (Second Respondent)

Solicitors:
Hones Lawyers (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2022/222973

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2022/476 (DA) by the Council of the City of Sydney.

2. The DA seeks the grant of consent for the installation of a mooring facility with associated services and access ramping at Walsh Bay Wharves Pier 8/9, located at 23 and 23A Hickson Road, Millers Point (site).

Agreement reached

3. At the request of the parties, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 21 May 2024, and at which I presided. Prior to the conciliation conference the parties had filed an agreement relating to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent for the DA, subject to certain amendments and consent conditions. The particulars of the amendments are detailed at [36].

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

Jurisdictional pre-requisites

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised.

7. On 22 May 2024, the parties provided an agreed jurisdictional statement which outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. I have had regard to this jurisdictional statement in my findings below, which are relevant to the question of the Court’s powers to make the orders embodied in the parties’ agreement.

Statutory background

8. The parties advise that on 20 August 1998, the Department of Urban Affairs and Planning (as it then was), granted development consent to the Walsh Bay Masterplan DA 60/97 (Masterplan Consent) under ss 91 and 91AB(2) of the EPA Act, as relevant at the time. Section 91AB of the EPA Act, as relevant, was concerned with Staged Development. The Masterplan Consent gave approval for an overall redevelopment concept for the Walsh Bay environs. Relevantly, particulars of development proposed on Pier 8/9 was expressly excluded from the Masterplan Consent, and a condition (Condition 21) included that:

“any subsequent DA shall incorporate a revised proposal for the use of Pier 8/9. The revised proposal shall reduce the extent of original fabric intervention, remove the need for the southern porte cochere and identify uses which encourage public access at wharf-apron level. The revised proposal may contain commercial and ground floor retail uses as alternatives to the hotel for Pier 8/9.”

9. The parties advise that the Masterplan Consent is taken to be a consent granted for a ‘concept development application’ under savings provisions pursuant to cl 145(2) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017. Accordingly, s 4.24 of the EPA Act applies. The parties advise that there is no dispute that the DA, as amended, is consistent with the Masterplan Consent, meeting the requirements of s 4.24(2) of the EPA Act.

Designated development

10. The proposed development is designated development pursuant to s 5.16 of the State Environmental Planning Policy (Precincts - Eastern Harbour City) 2021.

11. The applicant requested the issue of Secretary's Environmental Assessment Requirements (SEARs) on 7 May 2020, and the SEARs were issued on 9 June 2020. The parties advise that in accordance with s 4.12(8) of the EPA Act, an Environmental Impact Statement was submitted in respect of the DA (Tab 3 of the Class 1 Application filed 29 July 2022) (EIS). The parties are satisfied that the EIS addresses the matters required by the SEARs.

State Environmental Planning Policy (Precincts - Eastern Harbour City) 2021

12. Chapter 5 is concerned with Walsh Bay and applies to the proposal. The water-based component of the site, where the substance of the proposed mooring facility development would occur, falls within Zone 2 – Walsh Bay Waterway zone. The proposal comprises a marina entry arrangement on the wharf, which itself falls within Zone 1 – Walsh Bay Conservation zone. The proposal is permissible as “mooring facilities” in each zone.

13. Under s 5.8(3), the consent authority shall not grant consent to an application to carry out development on land to which Chapter 5 applies, unless it is of the opinion that the carrying out of the development is generally consistent with the aims of this Chapter and the objectives of the zone within which the development is proposed to be carried out. The parties have submitted that the proposal satisfies these requirements and have referred me to the EIS and an Addendum EIS (filed 20 May 2024) for the essential reasoning behind the position they take.

14. The proposal is generally consistent with the objectives of Zone 2 because:

• With respect to zone objective (a): with input from relevant experts, the EIS finds that the proposal would be compatible with the commercial shipping and navigational requirements in Sydney Harbour.

• With respect to zone objectives (b) and (c): the proposal retains public foreshore access along the Walsh Bay Pier 8/9 structure, and the Harbour and Harbour foreshore would remain as a recognised community asset. With respect to this, a balance is struck with use of the mooring facility being available for vessels owned or controlled by members of the public, beyond the lessees and tenants of property in Zone 1.

15. The proposal is generally consistent with the objectives of Zone 1 because:

• With respect to zone objective (a): the proposal fits into the range of uses envisaged for the zone.

• With respect to zone objective (b): the proposal has been designed sympathetically, considering the existing heritage significance of the land-based structures within the Walsh Bay Wharves Precinct. Here I note the advice from Heritage NSW in that regard, mindful of the amended proposal (see [26]).

• With respect to zone objective (c): the proposal, as far as Zone 1 itself is concerned at least, is of such a scale that it has no prospect of detracting from the financial, commercial and retail functions of the existing city central business district and the Sydney Cove Redevelopment Area.

• With respect to zone objective (d): it is agreed by the parties, and I accept, that the proposal would not unreasonably impact the surrounding areas.

16. The reasons cited above with respect to Zones 1 and 2, also apply with respect to the test relating to the aims of the Chapter. I will also note the advice of the parties that the proposal is adequate with respect to parking and traffic matters. I find that the proposal is also generally consistent with the aims of Chapter 5.

17. I also note the advice of the parties that relevant to s 5.11(2), Council has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the Walsh Bay Conservation Zone and considers there will be no unreasonable impact on the heritage significance of the zone.

18. Mindful of Part 5.3, otherwise, the parties advise that relevant matters have been considered and there are no requirements for jurisdictional findings of the Court.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. Chapter 2, concerned with Coastal Management, generally applies with the site located in the coastal zone.

20. Sections 2.10 and 2.11 do not apply as the site is land within the Foreshores and Waterways Area under State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6.

21. Section 2.12 applies but I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards on the site or other land based on the assessment set out in the Estuarine Ecology Assessment (Appendix T to the Addendum EIS pp 4, 5 and 8), and in the Acid Sulfate Soil Management Plan (Appendix R to the Addendum EIS p 6).

22. Chapter 4 is concerned with contamination and remediation. The parties advise that the site is suitable for the proposed development on the basis of sediment quality investigations undertaken to date (Appendix Q to the Addendum EIS) and through the incorporation of recommended safeguards under consent conditions. I accept this advice.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

23. The parties advise that as the DA was lodged on 25 May 2022, now repealed Chapter 10, relating to the Sydney Harbour Catchment, continues to apply to this DA. Relevantly, with the site located within the Foreshores and Waterways Area boundary. The parties have advised as follows with respect to relevant matters:

• For the purposes of s 10.1, the proposed development is consistent with the aims of Chapter 10 (as set out on pp 39-40 of the EIS).

• For the purposes of s 10.11, the development is consistent with the Foreshores and Waterways Area planning principles (p 41 of the EIS).

• For the purposes of s 10.18, the EIS has addressed the other matters raised in Division 2 at pp 42-45.

• For the purposes of ss 10.53, 10.54 and 10.55, the applicant submitted a Heritage Impact Statement (Tab 4 of the Class 1 Application). The Heritage Impact Statement concluded that the design has considered the historic nature of the precinct, and has a minor but acceptable impact on the significance of the site in consideration of its current and evolving context (p 38, Tab 4 of the Class 1 Application).

• For the purposes of s 10.50, the EIS has addressed the matters raised in s 10.59 at p 45 (and in the Heritage Impact Statement).

• For the purposes of s 10.54, the proposed development will not adversely impact a place of Aboriginal heritage significance or potential heritage significance (p 33 of the EIS and Tab 6 of the Class 1 Application - p 12).

24. I accept this agreed advice of the parties and see the proposal is satisfactory in regard to State Environmental Planning Policy (Biodiversity and Conservation) 2021, as applicable.

Biodiversity Conservation Act 2016

25. For the purposes of s 7.12, the parties advise that the proposed development is not anticipated to cause any adverse impacts on threatened species or Endangered Ecological Communities, and the site does not constitute a specific habitat for other aquatic species (p 31 of the EIS).

Integrated development

Heritage Act 1977

26. The proposal constitutes Integrated Development for the purposes of s 57 of the Heritage Act 1977 as the site is identified as part of the Walsh Bay Wharves Precinct, which is listed on the State Heritage Register. After some rounds of exchange between the applicant and Heritage NSW, on 22 April 2024 and in light of amending plans, Heritage NSW advised that the impact of the proposal has been “reduced to an acceptable degree” (Jurisdictional Statement par 75).

27. General Terms of Approval have not been provided by Heritage NSW as at the date of the section 34 agreement between the parties. However, the parties advise that the “fail to inform” provisions of s 4.47(5)(a) of the EPA Act have triggered in this instance.

28. It is clear to me that the matter of heritage has been resolved satisfactorily in this instance overall.

Fisheries Management Act 1994

29. The DA constitutes Integrated Development pursuant to s 205. On 8 June 2022, the Department of Primary Industries issued general terms of approval. These have been incorporated in the Conditions of Consent.

Sydney Local Environmental Plan 2012

30. The parties advise that due consideration has been given to the matters relating to cl 5.10 and heritage conservation.

Other provisions of s 4.15(1) of the EPA Act

31. Sydney Development Control Plan 2012 applies, but jurisdictionally, nothing turns on this policy instrument.

32. The parties advise the proposal was notified in accordance with requirements and there were numerous objecting submissions received. The parties advise that there has been due consideration to the issue raised, some of which were instrumental in bringing about the amendments to the proposal. It is clear that the requirement of s 4.15(1)(d) of the EPA Act has been satisfied.

Conclusion

33. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

34. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

35. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

36. The Court notes that on 12 April 2024, Council of the City of Sydney, as the relevant consent authority, approved under s 38 of the Environmental Planning and Assessment Regulation 2021, the applicant amending Development Application No. D/2022/476 to rely upon the amended plans and documents referred to in Annexure B.

Orders

37. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to Development Application No. D/2022/476 for the installation and use of a mooring facility with associated services and access at 23 and 23A Hickson Road, Millers Point, also known as Lots 8 and 9 in Deposited Plan 1018716, subject to the conditions of consent at Annexure A.

3. The applicant is formally allowed to file the plans and documents referred to in Annexure B.

4. The applicant is to pay those costs of the first respondent that have been thrown away as a result of the amendment of the application development consent referred to in the Notation at [36], pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $15,000.00 payable within 28 days from the date of these orders being made.

.…………………………

P Walsh

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 05 June 2024