Nicholas Black Architects Pty Ltd v Sydney City Council
[2007] NSWLEC 373
•25 May 2007
Land and Environment Court
of New South Wales
CITATION: Nicholas Black Architects Pty Ltd v Sydney City Council [2007] NSWLEC 373 PARTIES: APPLICANT
RESPONDENT
Nicholas Black Architects Pty Ltd
Sydney City CouncilFILE NUMBER(S): 10106 of 2007 CORAM: Bly C KEY ISSUES: Appeal :- Modification application, conditions of consent, public domain works, alterations to hotel. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Development Control Plan (Urban Design)
Darlinghurst Road Improvement Scheme Development Application PlanCASES CITED: Back & Riggs Architects v Sydney City Council [2005] NSWLEC 214;
Progress & Securities Pty Ltd v North Sydney Municipal Council BC8802317;
Ryde Municipal Council v The Royal Ryde Homes (LGRA, vol 19 at 324)DATES OF HEARING: 24/05/2007 and 25/05/2007 EX TEMPORE JUDGMENT DATE: 25 May 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr C. Gough, solicitor
of Storey & Gough SolicitorsRESPONDENT
Mr S. Kondilios, solicitor
of Maddocks Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
25 May 2007
JUDGMENT10106 of 2007 Nicholas Black Architects Pty Limited v Sydney City Council
1 On 20 August 2000 the City of Sydney granted deferred commencement consent D2003/765 for alterations and additions to the existing 6-storey hotel known as the Kings Cross Hotel at 248 William Street, Kings Cross. These works are now well under way.
2 The consent was the subject of a successful appeal heard by this Court on 15 April 2005 (Back & Riggs Architects v Sydney City Council [2005] NSWLEC 214), resulting in certain amendments to and deletion of conditions of that consent. That appeal did not involve the matters raised in this appeal.
3 Under the heading Public Domain Plan condition 30 formerly condition 29 of the amended consent relevant to this appeal requires that a detailed public domain plan shall be prepared and approved by the council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979 (“The Act”). This condition also contains a number of particular requirements for the preparation of and inclusion in the required public domain plan, including the provision of smart poles which are to be provided “at the applicant’s cost”.
4 A public domain plan has now been prepared and I understand that this plan meets the abovementioned requirements and is satisfactory to the council. As its title implies, the public domain plan provides for certain works on land beyond the site of the hotel, mainly in Darlinghurst Road. These works mainly comprise paving, drainage and street lighting in the form of the so-called smart poles.
5 The applicant now seeks under s 96 of the Act the:
- “modification of the extent of public domain works to be carried out by the owner and deletion of condition 30(c)(x) provision of smart poles.”
6 The modification application was more particularly explained during the hearing. The sought amendments to the condition involve the deletion of the words “at the applicant’s cost” from condition 30(c)(x) and the inclusion of a new condition that has the effect of detailing those works within the public domain that the applicant is prepared to undertake at its own cost.
7 The applicant has provided a plan that indicates the extent of such works, which exclude about half of the total pavement area provided for in the public domain plan. This plan effectively excludes the three smart poles shown in the public domain plan.
8 In essence the council submits that the effect of condition 30 is that not only must the applicant prepare the public domain plan, which it has now done, but that it should also carry out the works described therein at its cost. In support of this submission, reference is made to the requirement in condition 30(c)(x) for the provision of smart poles at the applicant’s cost and to the original approved architectural plans that include a depiction of the paved areas comprised in the public domain plan with a note describing this as the proposed extent of paving. Another note associated with these paved areas refers to the provision of new street trees and paving which is to be similar to the Darlinghurst Road streetscape improvement program by council.
9 During the hearing I was taken to an array of materials in both the council’s and the applicant’s bundles of documents. These materials include: the subject modification application and supporting documentation; the provisions of the public domain improvement plan in the South Sydney Development Control Plan (Urban Design); council file notes, reports and correspondence; the applicant’s original statement of environmental effects; and the council’s Darlinghurst Road Improvement Scheme Development Application Plan. In addition I was informed that in the vicinity of the site a number of recent developments have carried out public domain works at no cost to the council. I was also referred to the joint town planning report prepared by Mr Andrew Martin, for the applicant, and Ms Joanna Hole, for the respondent.
10 In relying on Progress & Securities Pty Ltd v North Sydney Municipal Council BC8802317, it was submitted on behalf of the council that the applicant should not seek to avoid its responsibilities under condition 30 on the basis that the condition is unreasonable. Such an approach would inappropriately necessitate a re-examination of the particular merits of the original application in circumstances where the applicant has accepted the benefit of the consent, taking into account the condition, by commencing the approved works. It now seeks to be relieved of the burden of the condition.
11 In Progress & Securities, Bignold J decided that the power conferred by s 102(1) of the Act, now s 96, is not limited to situations involving changed circumstances from those existing at the time that development consent is granted, but that the absence of any changed circumstances is a relevant consideration in the exercise of the statutory discretion. Acceptance of the benefit of the development consent in the light of the condition can also be taken into consideration.
12 Taking these matters into account, I accept the submissions made on behalf of the applicant that the decision in Progress v Securities does not prevent the Court from determining this modification application on its merits, including taking into account the absence of changed circumstances and the fact that the benefit of the development consent has now been taken. In the circumstances of this modification application I am satisfied that these matters should not attract any determinative weight and I can consider the reasonableness or otherwise of the condition. In so doing I need to consider what the condition actually requires.
13 In short the respondent says that the condition requires the applicant to not only prepare the public domain plan, as it has, but it should also construct at its cost all of the works associated with that plan. The applicant acknowledges that it is its responsibility to prepare the public domain plan but says that, notwithstanding that it has agreed to do some of the works in accordance with its plan, it is not required to do all of the works.
14 The interpretation by the Court of condition 30 should be undertaken on its own terms. This should not be done in accordance with what others, including council officers and the applicant’s architects, may think the condition means. Similarly, any actions taken by these people on the basis of their opinions cannot be determinative.
15 Condition 30 is predominantly about the preparation and content of the public domain plan. The only aspect in the condition that specifically speaks of matters to be done at the applicant’s cost is the provision of smart poles. By reference to checks by council officers throughout the construction process to advise contractors of non-complying elements and the need to obtain approval in relation to footpath levels and gradients in parts (d) and (e) of the condition there is some inference that the works might be carried out by someone other than the council, but again this cannot be determinative.
16 Taking these matters into account, I accept the submission made on behalf of the applicant that the condition does not clearly require the applicant to carry out the works associated with the public domain plan and, at best, I find it to be ambiguous.
17 In these circumstances I should apply the finding of Else-Mitchell J in Ryde Municipal Council v The Royal Ryde Homes (LGRA, vol 19 at 324) that as a consequence of the legal qualities that a consent possesses, consents need to be framed in clear terms and conditions specified with certainty. Lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail any conditions of consent. I thus accept the submission made on behalf of the applicant, on the basis of the condition being at best ambiguous as to who should be responsible for the work, that I should find in its favour.
18 This brings me to the question of whether, even if the applicant were to be responsible for the work, condition 30 would be appropriate, taking into account the so-called Newbury tests (Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600). These tests are whether the condition is:
(a) for a planning purpose,
(b) fairly and reasonably relating to the development, and
(c) not being so unreasonable that no authority would have imposed it.
19 It is plain that the works referred to in the public domain plan are for a planning purpose. It is also apparent that, to a degree, the works fairly and reasonably relate to the hotel development. This is because of the physical relationship of the development to these works where the northern wall of the altered building opens directly onto the areas encompassed within the public domain plan. This relationship will result in a co-mingling of hotel patrons with people in the public domain who are not associated with the hotel.
20 Up to a point I agree with the evidence of Ms Hole, that taking into account the increased capacity of the hotel there will be an increased usage of the adjacent public domain. However accepting as I do the evidence of Mr Martin, to the effect that there will be considerable utilisation of this area by the general public, I agree that the works proposed to be carried out by the applicant is a sufficient response to the increased utilisation of this area by hotel patrons. In these circumstances I am satisfied that the condition, if it did require that the applicant be responsible for the carrying out of all of the public domain works, would not be reasonable in terms of the Newbury tests.
21 Consistent with these conclusions, I am satisfied that the applicant’s proposal to carry out a significant proportion of the public domain works at its cost would be reasonable and that amendment of the consent to this effect would not upset the burden/benefit balance in the consent itself. I have therefore decided to uphold the appeal and amend the consent in the manner sought by the applicant.
22 I understand the council’s concerns that if the works proposed by the applicant are undertaken other than in conjunction with the completion of all of the works associated with the public domain plan that problems might arise in terms of the making good of the existing remaining footpath that might be damaged in the process. Plainly the applicant should be responsible to ensure that any such damage is rectified in an appropriate manner. I have thus included a new condition to this effect.
23 The Orders of the Court are:
1. The appeal is upheld.
2. Development consent D2003/765 for the renovation and refurbishment of the existing hotel at 248 William Street, Potts Point is amended by:3. Exhibit A is retained.
a) the deletion of the words “(to be provided at the applicant’s cost)” in condition 30(c)(x); and
b) the inclusion of a new condition 30(g) as follows:
The extent of public domain works to be carried out by the applicant in accordance with the approved public domain plan at its expense is that area within the red line as shown on the plan by Nicholas Back Architects marked section 96, application 2070-S96.11B September 2006 (exhibit A). Any part of the public domain beyond and in the proximity of the red line shown on the above plan is to be made good to the satisfaction of the council.
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