Olivia Ross v Patrick Lane (No 2)

[2021] NSWLEC 121

Land and Environment Court

New South Wales

Medium Neutral Citation:

Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121

Hearing dates:

13 October 2021; written submissions by 22 October

Date of orders:

4 November 2021

Decision date:

04 November 2021

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See orders a [157]

Catchwords:

JUDICIAL REVIEW - challenge to validity of development consent - challenge raises failure of consent authority to address the provisions of State Environmental Planning Policy 65 (the SEPP) - did the SEPP give rise to a jurisdictional prerequisite required to be determined objectively - SEPP to be taken as requiring jurisdictional determination - objective factual consideration of the jurisdictional requirement – proposed development not “the substantial redevelopment or the substantial refurbishment of an existing building” - development application did not trigger requirement to comply with the SEPP - summons dismissed.

COSTS - costs ordinarily follow the event - no basis to depart from presumption - consent authority enters submitting appearance save as to costs - Applicant ordered to pay the First Respondent's costs

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15 and 9.45

Land and Environment Court Act 1979, s 25B

State Environmental Planning Policy No 65 Design Quality of Residential Apartment Development, cll 2, 4 and Sch 1

Sydney Local Environmental Plan 2012

Sydney Development Control Plan 2012

Cases Cited:

Barton Securities Limited v Warringah Council & Others (2009) 170 LGERA 223; [2009] NSWLEC 179

Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504

Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188

Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298

Olivia Ross v Patrick Lane [2021] NSWLEC 61

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9

Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Category:

Principal judgment

Parties:

Olivia Ross (Applicant)
Patrick Lane (First Respondent)
Sydney City Council (Second Respondent)

Representation:

Counsel:
Mr G Farland and Ms L Sims, barristers (Applicant)
Ms J Reid, barrister (First Respondent)
Submitting appearance (Second Respondent)

Solicitors:
Benjamin & Khoury (Applicant)
Swaab (First Respondent)
Sydney City Council (Second Respondent)

File Number(s):

321900 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

Ms Ross’s Amended Summons

Representation

The hearing

The issues requiring determination

The relevant statutory provisions

Introduction

The relevant provision of the Environmental Planning and Assessment Act 1979

The relevant provisions of SEPP 65

The Land and Environment Court Act 1979

The LEP and the DCP

The evidence

Mr Farland’s application to reopen

The parties’ submissions

Introduction

The written submissions for Ms Ross

The submissions on “jurisdictional fact”

Matters to be addressed if a jurisdiction fact consideration is required

The written submissions for Mr Lane

The written reply submissions for Ms Ross

Mr Farland’s oral submissions

Ms Reid’s oral submissions

Mr Farland’s oral submissions in reply

Consideration

Jurisdictional Fact

Clause 4(1)(a)(ii) of SEPP 65

Introduction

The definitions and the use of dictionaries

The “existing building”

The relevant facts to be weighed

The approach to determining characterisation of Mr Lane’s development

Other elements of SEPP 65

Matters of fact to be weighed

From the submissions on the basis of the entire development on the site

Facts to be considered but best depicted visually

“Part of a building”

Conclusion

Discretion

Costs

Orders

Annexure A

Annexure B

Annexure C

Annexure D

Annexure E

Annexure F

Judgment

Introduction

1. On 25 May 2019, Mr Lane applied to Sydney City Council (the Council) for development consent to undertake additions and alterations to his apartment, an apartment located in a complex at 21C Billyard Avenue, Elizabeth Bay. On 12 August 2020, the Council granted consent subject to conditions for these proposed additions and alterations. The precise nature of Mr Lane’s development is set out later in more detail.

2. On 11 November 2020, Ms Ross, an owner of an apartment in a complex to the south of that within which Mr Lane’s apartment is located, commenced these Class 4 proceedings, seeking to have the Court declare that the development consent granted by the Council to Mr Lane was invalid and restraining him from acting on that consent.

3. The nature of the alleged breach, the subject of Ms Ross’s Summons commencing the proceedings, is said to be that the nature of the additions and alterations sought in Mr Lane’s development application (DA) required to be considered as to whether they fell within the scope of cl 4 of State Environmental Planning Policy No 65 Design Quality of Residential Apartment Development (SEPP 65) as a matter of objective (jurisdictional) fact. If it did, as is submitted for Ms Ross to be the case, it would have been necessary for the DA to have been referred to a Design Review Panel. There is no issue that the Council has such a panel and that Mr Lane’s DA was not referred to it.

4. The case advanced for Ms Ross is that, determined objectively, SEPP 65 was engaged; its mandated prerequisite was not satisfied; and, as a consequence, the Council's granting of consent to Mr Lane's proposed development was void.

Ms Ross’s Amended Summons

5. On 29 January 2021, Ms Ross was granted leave to rely on an Amended Summons. The relief sought by the Amended Summons is:

ORDERS SOUGHT

1 A declaration that development consent purportedly granted by the Second Respondent pursuant to section 4.26(1)(a) of the Environmental Planning and Assessment Act 1979 on 12 August 2020 in respect of D/2019/665 is invalid, void and of no force and effect.

2   Costs.

6. The grounds then pleaded in support, omitting the descriptive particularisation of Mr Lane’s proposed development, were in the following terms:

Ground 1: Failure to consider SEPP 65

2   State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development.

Particulars

(a)   Pursuant to clause 4(1) of SEPP 65, the SEPP applies to:

development for the purpose of a residential flat building ... if the development consists of. .. (a)(ii) the substantial redevelopment or the substantial refurbishment of an existing building ... and (b) the building concerned is at least 3 storeys .. . and (c) the building concerned contains at least 4 or more dwellings.

(b)   The proposed development meets the above criteria.

3   The development application was required to provide certain documents and information relevant to SEPP 65 considerations pursuant to the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

Particulars

(a)   Pursuant to clause 50(1A) and (1AB) of the EP&A Regulation, the development application was required to be accompanied by a design verification certificate that addresses how the design quality principles are achieved and demonstrates how Parts 4 and 5 of the Apartment Design Code have been achieved.

(b)   Pursuant to clause 2(5) of Schedule 1 to the EP&A Regulation, the statement of environmental effects accompanying the development application was required to include various information and drawings relevant to the design quality principles and the Apartment Design Code, including relevantly drawings showing compliance with building height, setbacks marked on plans.

4   The development application did not comply with the EP&A Regulation in that it did not provide the above document and information.

5   Before determining the development application, the Second Respondent was required to refer the development application to the City of Sydney Design Review Panel pursuant to clause 28(1) of SEPP 65 and consider any advice provided by the Panel pursuant to clause 28(2) of SEPP 65.

6   The Second Respondent failed to refer the development application to the Panel and consequently failed to consider any advice from the Panel.

7 The Second Respondent was required to consider the design quality of the development when evaluated in accordance with the design quality principles and the Apartment Design Guide: clause 28(2) SEPP 65.

8 Development consent to the development application must not be granted if, in the opinion of the Second Respondent , the development does not demonstrate that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria: clause 30(2) SEPP 65.

9 In determining to grant development consent, the Second Respondent failed to consider the matters referred to in paragraph [8] and was not satisfied of the matter in paragraph [9].

10   The Second Respondent failed to consider SEPP 65 in making the decision.

Particulars

(a) The Second Respondent failed to consider visual privacy in accordance with Part 3F of the Apartment Design Guide.

(b) The setbacks of the balcony and windows of the new level of apartment 11 do not comply with the design criteria in Part 3F.

(c)   The Second Respondent failed to consider ceiling height in accordance with Part 4C of the Apartment Design Code.

(d)   The ceiling height of the new level of apartment 11 does not comply with the design criteria in Part 4C when service bulkheads are accounted for.

Ground 2: Non-compliance with height of building development standard Failure to consider relevant provisions of SLEP 2012

11   Sydney Local Environmental Plan 2012 (SLEP 2012) applies to the land.

12   Pursuant to clause 4.3 of SLEP 2012, the height of buildings on any land is not to exceed the maximum height shown for the land on the height of buildings map.

13   The height of buildings map specifies a maximum height of 22 metres in respect of the land the subject of the development application.

14   Building height (or height of building) is defined in the Dictionary to SLEP 2012 to mean, in relation to the height of a building in metres

The vertical distance from ground level (existing) to the highest point of the building including plant and lift overruns ...

15   In the Dictionary to SLEP 2012 "ground level (existing)" is defined to mean: "the existing level of a site at any point."

16   The height of the building (taking the highest point to be the roof of the new level of apartment 11) exceeds 22 metres when measured from the existing level of the land the subject of the decision.

17   Pursuant to clause 4.6 of SLEP, development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request for the applicant in accordance with clause 4.6(3) and the consent authority is satisfied of the matters in clause 4.6(4).

18   The First Respondent did not make a written request seeking to justify the contravention of the height of buildings development standard in accordance with clause 4.6(3).

19   The Second Respondent was not satisfied of the matters in clause 4.6(4).

7. On 7 July 2021, Ms Ross’s legal representatives advised those of the two Respondents that Ground 2 was no longer pressed.

Representation

8. Ms Ross was represented by Mr Farland and Ms Sims, barristers, and Mr Lane was represented by Ms Reid, barrister. A submitting appearance (save as to costs) was filed by the Council on 12 July 2021.

9. Helpful (and concise) written submissions were provided by the advocates (including submissions in reply on behalf of Ms Ross) and are referred to later, as appropriate, to supplement that which was advanced during the course of the oral submissions during the hearing.

The hearing

10. The hearing was conducted using Microsoft Teams software with no physical courtroom attendance required. Ms Ridler, the Council’s Assessing Officer who had deposed an affidavit, was not required for cross‑examination.

The issues requiring determination

11. There is a set of cascading issues requiring determination concerning Ground 1 in these proceedings. They are:

1. Is whether SEPP 65 applied to the DA made to the Council a jurisdictional fact necessary to be determined prior to exercising the power to approve or refuse the DA?

2. If the potential engagement of SEPP 65 for the DA was a jurisdictional fact, considered objectively was cl 4(1)(a)(ii) of SEPP 65 satisfied so that assessment of the DA required compliance with the SEPP?

3. If SEPP 65 was engaged, in circumstances where the determination by the Council's local planning panel to grant conditional consent to the DA had been made without complying with the requirements of SEPP 65, should an order be made, on discretionary grounds, pursuant to s 25B of the Land and Environment Court Act 1979 (the Court Act) to give Mr Lane with an opportunity to provide additional documentation in compliance with the requirements of SEPP 65 and, then, for the Council to consider such material and decide whether or not Mr Lane’s DA still warranted approval?

The relevant statutory provisions

Introduction

12. Only a limited number of statutory provisions were actually (or potentially) engaged for consideration. These are set out below.

The relevant provision of the Environmental Planning and Assessment Act 1979

13. These proceedings have been commenced by Ms Ross pursuant to the open standing provision in the Environmental Planning and Assessment Act 1979 (the EPA Act) contained in s 9.45, a provision giving the Court jurisdiction to remedy or restrain anticipated or actual breaches of the Act or of an environmental planning instrument made pursuant to the Act. It is not necessary to set out the terms of the provision.

The relevant provisions of SEPP 65

14. Although Mr Farland referred to a number of provisions of SEPP 65, it is presently only necessary to set out the element of cl 4 of the Policy that provides the basis for it being advanced on behalf of Ms Ross that there was a requirement to determine, as a matter of objective fact, whether or not the Policy was engaged to be considered during the assessment of Mr Lane's DA. The terms of cl 4 of SEPP 65, relevantly, are:

4   Application of Policy

(1)   This Policy applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component if—

(a)   the development consists of any of the following—

(i)   …,

(ii)   the substantial redevelopment or the substantial refurbishment of an existing building,

(iii)   …, and

(b)   the building concerned is at least 3 or more storeys (not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car‑parking), and

(c)   the building concerned contains at least 4 or more dwellings.

15. There is no dispute the building within, and upon, which Mr Lane’s development is proposed satisfies cl 4(1)(b) and (c). Only the applicability of cl 4(1)(a)(ii) is potentially engaged for consideration.

16. However, it will also later be necessary to refer to a limited range of other provisions of SEPP 65.

The Land and Environment Court Act1979

17. The issue engaged, as the final matter potentially requiring to be addressed, is as to whether an order pursuant to s 25B of the Court Act might be appropriate to be made. This provision is in the following terms:

25B   Orders for conditional validity of development consents

(1)   The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order—

(a)   suspending the operation of the consent in whole or in part, and

(b)   specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2)   Terms may include (without limitation)—

(a)   terms requiring the carrying out again of steps already carried out, or

(b)   terms requiring the carrying out of steps not already commenced or carried out, or

(c)   terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

The LEP and the DCP

18. It is not necessary to set out any provisions of the Sydney Local Environmental Plan 2012 (the LEP) or of the Sydney Development Control Plan 2012 (the DCP) as no submission was made that any detailed matters in these were engaged for specific consideration in these proceedings. It is sufficient to note that the Council’s Assessment Report concluded that there were no non‑compliances with any relevant provisions of the LEP or the DCP and that the Council's local planning panel accepted that this was the position.

19. Mr Farland took me through elements of the Council’s Assessment Report (particularly as to matters relating to impacts on views - not only from Ms Ross’s residence but from other locations where view impact assessments had been undertaken). These elements of his submissions were directed to whether cl 4(1)(a)(ii) of SEPP 65 was engaged, thus triggering the need for a SEPP 65 consideration of Mr Lane’s proposed development, rather than compliance with the LEP or the DCP.

The evidence

20. The Court Book (containing relevant pleadings and submissions on behalf of Ms Ross and Mr Lane) was tendered, becoming Exhibit A.

21. The primary evidence requiring consideration was an extensive bundle of documentary material tendered on behalf of Ms Ross. This material was admitted without objection, becoming Exhibit B.

22. For Mr Lane, the affidavit from Ms Ridler was read. Its tender was objected to by Mr Farland on the basis of relevance to the issues requiring determination in these proceedings. I ruled then that it was admissible for the limited purpose of my potential determination of whether or not an order pursuant to s 25B of the Court Act should be made (in the event that, in my sequence of decision‑making, I reached a point making this affidavit relevant for those purposes). The documents exhibited to Ms Ridler's affidavit were admitted also (as Exhibit 1) on that basis.

23. A recent survey certificate, becoming Exhibit 2, was tendered on behalf of Mr Lane. It is to be observed that, during submissions, neither advocate referred to any detail on this survey certificate.

24. Finally, for completeness, three observations are warranted concerning evidentiary matters. The first is that the affidavit from Ms Ridler and the documents which became Exhibit 1 had been included behind Tabs 1 and 2 in the folder containing the bundle of material tendered on behalf of Ms Ross and becoming Exhibit A.

25. Second, as later described, when I granted Mr Farland leave to reopen Ms Ross’s case, I indicated that this would require reconsideration of the basis upon which Ms Ridler's affidavit had been read and Exhibit 1 permitted to be tendered.

26. Finally, Ms Reid sought to read an affidavit from Mr Peter Lonergan, the architect who had been responsible for the design of Mr Lane’s proposed development. Ms Reid did not seek to rely on Mr Lonergan's affidavit as expert evidence (given that Pepper J had earlier refused leave to rely on expert evidence in these proceeding - see Olivia Ross v Patrick Lane [2021] NSWLEC 61) but for the limited purpose of explaining the basis upon which Mr Lonergan had undertaken his design activities on behalf of Mr Lane. I rejected this affidavit on the basis that permitting its admission, even on the limited basis nominated, would be contrary to the intention of Pepper J's ruling.

Mr Farland’s application to reopen

27. At the conclusion of Ms Reid's submissions on behalf of Mr Lane, Mr Farland commenced his submissions in reply. During the course of those submissions, when proposing to address the contingent position advanced on behalf of Mr Lane that an order pursuant to s 25B of the Court Act ought be made if the earlier aspects of the proceedings had been determined adversely to Mr Lane, Mr Farland attempted to address whether or not the process undertaken by Ms Ridler and, subsequently, by the Council’s local planning panel, had included any consideration of matters arising from SEPP 65.

27. Ms Reid objected to Mr Farland being permitted to do this, as she submitted that doing so was not responsive to anything which she had advanced on behalf of Mr Lane.

28. I upheld Ms Reid's objection and indicated to Mr Farland that, if he wished to make submissions on this new point, it would be necessary for him to seek leave to reopen Ms Ross's case.

29. After obtaining instructions, Mr Farland did seek leave to reopen to do so. Over objection from Ms Reid, I granted leave for that to occur. Mr Farland then addressed me on that point. I indicated to Mr Farland, at the time of granting him leave to reopen, that this would necessitate me revisiting my ruling on the limited basis of admitting Ms Ridler's affidavit and the documents exhibited to it. I then ruled that this evidence was now to be admitted for all purposes (including for responding to the matter for which Mr Farland had sought leave to reopen on behalf of Ms Ross).

30. At the conclusion of his doing so, Ms Reid indicated that she was unable to respond immediately due to computer system difficulties she was experiencing.

31. Given that I had forced her on to respond to these new propositions advanced by Mr Farland, I allowed Ms Reid until the close of business on the Wednesday after the hearing to file any written submissions in response to what Mr Farland had advanced on this point, with Mr Farland having an opportunity to provide written submissions in response by the close of business on the following Friday (at which time I would reserve my decision in these proceedings). I directed that each set of written submissions be limited to a maximum of three pages.

32. Such written submissions were later provided by Ms Reid, as were written submissions in response from Mr Farland on this limited point. I reserved my decision after their receipt.

The parties’ submissions

Introduction

34. It is convenient to address the parties written submissions prior to turning to the oral submissions made during the hearing on 13 October 2021.

The written submissions for Ms Ross

The submissions on “jurisdictional fact”

35. Mr Farland relied on the decision by Sheahan J in Barton Securities Limited v Warringah Council & Others (2009) 170 LGERA 223; [2009] NSWLEC 179 (Barton Securities), a decision where his Honour found that the relevant elements of cl 4 of SEPP 65 did give rise to the necessity to determine whether a jurisdictional prerequisite to engage SEPP 65 is satisfied. It is appropriate to set out the relevant portion of the judgment in Barton Securities in full. It was in the following terms:

98   I do not accept the Council’s submission (written submissions par 48) that consideration of whether or not SEPP 65 applied is merely a step in the s79C assessment process. It is a preliminary question of great importance. Indeed, I am satisfied that the decision under cl 4(1)(b) of the SEPP is a jurisdictional fact. Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5; (2000) 199 CLR 135, at [28]; Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422; (2004) 61 NSWLR 707 at [9], and [53]-[66]; Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3; (2008) 158 LGERA 324 at [21]; Barrick Australia Ltd v Williams [2009] NSWCA 275, at [26].

99   “Substantial” is defined in the Macquarie dictionary as “of considerable amount”. It takes its meaning in and from its context, (Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331, at 338-9 and 348; Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437). Therefore, a comparison is required between the existing building and how it will be with the Haines renovation. Both Mr Hudson (for the Council) and Mr Ireland (for the applicant) attempted such a comparison.

100   “Considerable” structural works are clearly required by the DA. They are not set out in the SEE, and Mr Ireland notes them to include (written submissions pars 15 and 17):

“… demolition and construction of a new western wall, and the installation of a new structural transfer beam. The walls of the existing Lot 4 are to be demolished and extended northwards, a new level is to be added, a new deck placed on what is now a roof area, a new roof slab added, the roof top terrace converted to a usable area surrounded by glass framed balustrades, a new elevated rear balcony installed, and a single garage is to become a double garage”.

…

… Level 3 (bedroom, ensuite, study, balcony and deck) is all new . There is a significant northwards extension of the building and enclosure in balustrading of the roof area on Level 2. A new east facing window W7 is added”. (emphasis his).

101   Mr Hudson acknowledged all these elements of the Haines proposal (T 16.6.09, p53, LL20-23), but described them as a “modest extension” (T 16.6.09, p51, L39), and as a “little bit up the top” (T 16.6.09, p53, L22), relying on the fact that the building will continue to comprise only four units.

102   I am satisfied that these works clearly amount to a “substantial refurbishment”, and probably also a “substantial redevelopment” of No.69. King v Woollahra Council [2006] NSWLEC 654.

103   Accordingly, (1) SEPP 65 was inappropriately excluded – an error of law according to Hope v Bathurst City Council (1980) 144 CLR 1; and (2) consent cannot be granted without the appropriate “design verification” required by Regulation 50(1A), nor without Council’s having addressed the matters in cls 30(2)(b) and (c) of SEPP 65 (see [94] above). Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 161 LGERA 170, at [196]ff).

36. In relying on Sheahan J's conclusion in [98], Mr Farland took me to various authorities there cited concerning the existence of jurisdictional fact tests. For reasons I later set out, it is not necessary to explore the jurisdictional fact issue further. It is therefore unnecessary to address these, or the analysis of them advanced by Mr Farland, as applicable in the present context.

Matters to be addressed if a jurisdiction fact consideration is required

37. It is appropriate, here, to repeat the terms of the contest between the parties as to the applicability of SEPP 65. It is one of confined scope, being as to whether that for which Mr Lane has been granted development consent by the Council constitutes:

… the substantial redevelopment or the substantial refurbishment of an existing building.

38. It is appropriate to reproduce, first, some elements of the written submissions provided on behalf of Ms Ross. Under the heading “Meaning of substantial redevelopment and substantial refurbishment”, Mr Farland submitted, at paragraphs 12 and 13 (footnotes omitted):

12   In Barton Securities at [99], Sheahan J referred to the Macquarie dictionary definition of substantial: “of considerable amount”. His Honour considered that it takes its meaning in and from its context and that what was required was a comparison between the existing building and the building as proposed to be modified.

13   In addition to such a comparison, the phrases “substantial redevelopment” and “substantial refurbishment” should be construed having regard to the aims and objectives of SEPP 65. The following aims and objectives are relevant to this question:

a.   Recognising that design quality of residential apartment development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design: clause 2(2).

b.   To achieve better built form and aesthetics of buildings and of the streetscapes and the public spaces they define: clause 2(3)(b).

c.   To maximise amenity, safety and security for the benefit of occupants and the wider community: clause 3(d).

39. He then turned to matters under the heading “The development application, assessment and determination”. Of the material contained under this heading, much of it is merely scene‑setting and not relevant to determination, objectively, of whether or not SEPP 65 is engaged. The relevant paragraphs for this purpose are 15, 16, 19 and 20 only. They are in the following terms (footnotes omitted):

15.   The “Genuine and Accurate Proposed Cost of Development” indicated on the development application was $385,000.

16.   In the development application, the existing gross floor area was specified as 94.47 SQM and the proposed gross floor area as 134.2 SQM.

17.   …

18.   …

19.   A more accurate description of the development, as depicted on the plans, is:

a.   the construction of a new storey on the southern portion of the building, containing a living space, bathroom and outdoor terrace area;

b.   installation of an internal circular stairwell connecting the new storey to the existing unit 11; and

c.   enclosure of northern terrace on the existing level unit 11 for a wintergarden.

20.   The development is not confined to unit 11 but also involves work on the common property (the roof of the existing building).

40. Mr Farland next turned, expressly, to the question of whether the development is a substantial redevelopment and/or a substantial refurbishment. His written submissions addressed this point, at paragraphs 26 to 29 inclusive, in the following terms:

26   It is accepted that the increase in gross floor space proposed by the development is relatively modest when considered in purely numerical terms (an increase of 52.3 m2 above the existing 2942.9 m2). However, the question of whether the development is a substantial redevelopment should not be determined on that purely numerical basis. The focus of SEPP 65 is on the design quality of residential apartment development, not on compliance with numerical development controls such as floor space. The question of whether the development is a substantial redevelopment should be answered having regard to the objectives and mechanisms of SEPP 65.

27   The development involves the addition of a new storey to the existing residential flat building. This additional storey changes the built form and aesthetics of the building and will form part of the streetscape of Onslow Avenue and will be visible from public spaces. The addition of the new storey should be considered to be a substantial redevelopment bearing in mind the objective of SEPP 65 to achieve better built form and aesthetics of buildings and of the streetscapes and the public spaces they define (clause 2(3)(b)). That is, the phrase “substantial redevelopment” should be interpreted such that a development that will impact on the built form and aesthetics of buildings and the streetscape and public spaces should fall within the application of the SEPP so that the built form and aesthetics can be assessed within that framework.

28 The new storey also has the potential for significant impacts on the amenity of nearby residents, particularly with respect to visual impact, privacy, solar and view loss. The ADG provides clear design criteria to address those amenity impacts. For example, Part 3F of the ADG sets out requirements for setbacks from boundaries. Compliance of the development with those setbacks has not been assessed or considered by the consent authority and it is not known whether or not the development complies with the setback requirements. An objective of the SEPP is to maximise amenity, safety and security for the benefit of its occupants and the wider community (clause 3(d)). That objective is met by assessment of amenity against the ADG. Accordingly, the development should be considered to be a substantial redevelopment in order to give effect to the objective and assessment framework of the SEPP.

29   The development involves additional residential accommodation in the new storey. The amenity of the occupants is also a matter addressed by the objectives of the SEPP (clause 3(d)) and by the design criteria in the ADG. For example, Part 4C of the ADG prescribes minimum ceiling heights. Compliance of the development with the ADG ceiling heights was not assessed or considered by the consent authority and it is unknown whether or not the development complies. It is consistent with the objectives of SEPP 65 that the ceiling height of the new storey be assessed against this design criteria. Therefore, the development should be considered to be a substantial redevelopment in order to give effect to the objectives and assessment framework of the SEPP.

The written submissions for Mr Lane

41. It is, next, appropriate to consider Ms Reid's written submissions.

42. Ms Reid’s written submissions cogently addressed the issue of whether or not determination of a jurisdictional fact was required in these proceedings. However, under the circumstances for the reasons later set out, it is unnecessary for me to address this aspect of her submissions.

43. Ms Reid proposed, in her written submissions, the question of how the triggering element of SEPP 65 should be addressed in the event that this issue needed to be explored. She submitted that, at paragraph 22, I “would find, on a qualitative and quantitative assessment, that the proposal was not a substantial redevelopment or substantial refurbishment of an existing building.”

44. Ms Reid then set out a number of principles of statutory construction, principles which are unexceptional and do not require to be repeated here.

45. She then set out the reasons why she submitted that the triggering test in SEPP 65 was not satisfied.

46. She commenced her analysis by addressing the framework of SEPP 65 and submitting that the context within which the present debate was framed related to the entirety of the development on the site and not merely the built element within which Mr Lane's apartment is located, submitting in paragraph 31:

… that is, the application was framed as being for additions and alterations to the whole of the residential flat building.

47. She then addressed the question of language used, commencing with the observations of Sheahan J in Barton Securities and, next, proceeding to deal with the terms “redevelopment” and “refurbishment” contained in the triggering provision of SEPP 65. These paragraphs, 32 and 33, of her written submissions with were in the following terms:

32.   The applicant relies upon the observation of Sheahan J in Barton Securities at [99], that in the absence of a statutory definition, assistance is obtained from the Macquarie Dictionary definition of 'substantial' as being 'of considerable amount'. Of course, the use of the dictionary definition must be used with the caution urged by the Court of Appeal in House of Peace Pty Ltd & Anor v Bankstown City Council.

33.   It is also relevant to consider the plain and ordinary meaning of the words 'redevelopment' and 'refurbishment' as they are not defined in SEPP 65 or the Act. The Macquarie Dictionary does not define 'redevelopment' but defines 'development' as relevantly including '5. The erection, alteration, or demolition of a building, or the change of use of buildings or land'. 'Refurbish' is defined as 'to furbish again; polish up again; brighten'. 'Furbish' is defined as 'to restore to freshness or appearance or condition'. Having regard to the plain and ordinary meaning of the words, the Court would find that 'substantial refurbishment' would include the restoration of the original fabric of a building including re­ rendering or re-cladding, whereas 'substantial redevelopment' has a broader meaning which would not preclude alterations and additions to the building form, so long as they were not 'substantial.'

48. She then turned to set out what she proposed were the relevant factual matters which should inform my objective determination of whether or not the triggering provision in SEPP 65 was satisfied. She listed these in paragraph 35 of her written submissions in the following terms:

35.   When regard is had to the evidence, the following qualitative and quantitative matters are relevant:

a.   The proposal involves alterations and additions to one unit in a residential apartment development comprising 28 units. As a percentage of the total number of units the proposal relates to 3.57% of the development;

b.   Although the application was framed as an amendment to the whole of the development on the Land, if it were considered that the development comprised two residential flat buildings, the development is alterations and additions to 1 unit out of the 11 comprising the structure fronting 10 Onslow Avenue;

c.   The proposal does not increase the number of units in the development;

d.   The increase in floor area as a result of the development is an increase of 52.3m2 above the existing 2942.9m2 floor space;

e.   The increase in floor space is 1.8% of the existing floor space;

f.   The additional floor space is to unit 11 and comprises a living room and terrace on the existing roof above unit 11;

g.   The additional floor space includes an additional 'storey', however the floor plate of the additional 'storey' covers only a small proportion of the existing floor plate and is generally located behind the existing fire stair and lift motor room on the southern side of the building;

h.   The total proposed floor space ratio of the development is 2.05:1, where the LEP permits an FSR of 4.5:1;

i.   The proposed built form extending outside the existing envelope is modest and sits below the ultimate height of the building, referenced by the lift overrun which is setback from Onslow Avenue; and

j.   A helpful visual representation of the modesty of the proposal in comparison to the existing development is shown on the views from the sun solar diagrams which colours the roof addition as grey/white in the context of the overall existing development shown yellow/orange.

49. She concluded this element of her written submissions by referring to two merit decisions given by commissioners concerning whether or not the SEPP 65 provision here engaged for consideration was triggered for the purposes of the development applications there being considered. Whilst of interest, each of those decisions was addressed on the particular factual circumstances of those applications and they can provide no assistance for me in the present circumstances.

The written reply submissions for Ms Ross

50. Mr Farland's written reply submissions responded to what was said by Ms Reid concerning whether or not the triggering mechanism in SEPP 65 was potentially engaged as giving rise to the necessity to determine a jurisdictional fact. It is not necessary to consider those responses, given the course which I consider appropriate to adopt in these proceedings.

51. However, he did engage with, and respond to, Ms Reid's submissions concerning how I should interpret “substantial redevelopment or substantial refurbishment of an existing building”. This response was contained in paragraphs 22 to 24 of his written reply submissions. These are set out in full below:

22.   At [28] of the FRSA, the First Respondent calls up the definition of “building”. That definition includes “part of a building”. Accordingly, clause 4(1)(a)(ii) may be interpreted to include development that comprises the substantial redevelopment or the substantial refurbishment of part of an existing building. The development application form identifies the site as “11/10 Onslow Avenue Elisabeth Bay” and “Lot 11 SP 9561”8, although the development also involves the common property (the roof). The existing and proposed gross floor area in the development application form are also clearly referring to unit 11, rather than the entire building. The development application relates to part of the existing building. In the context of the part of the existing building to which it relates, the development is clearly a substantial re-development of that part of the existing building.

23.   Contrary to FRSA [34], redevelopment or refurbishment of part of an existing building can involve a substantial change to the overall built form. In the present case, although the redevelopment is confined to a single apartment and roof of the apartment complex, the development involves the addition of a new storey to the top of the building. This clearly has implications beyond the internal amenity of the apartment concerned and represents a substantial change to the overall built form.

24.   The facts of the present case are similar to those in Barton Securities, which also involved the addition of a storey to one apartment on top of the existing building, albeit the existing

52. Mr Farland then responded, briefly, to the factual matters advanced as relevant in Ms Reid's paragraph 35, saying, in paragraph 25 of his written reply submissions:

25.   The various matters relied on by the First Respondent [at 35-36] also fail to address the facts that the proposal:

a.   Is for an additional floor of the building,

b.   Adds external facades of that additional level,

c.   As such, adds to the scale bulk and height of the existing building,

d.   Makes a significant change to the built form of the building,

e.   Forms part of the streetscape of Onslow Avenue and

f.   Has the potential for significant impacts on nearby residents in terms of view impact, privacy, solar and view loss.

Mr Farland’s oral submissions

53. Mr Farland commenced his oral submissions by taking me through what he submitted were the relevant provisions of SEPP 65. He first took me to cl 2, “Aims, objectives etc”, proposing that the following were of relevance:

2   Aims, objectives etc

(1)   ...

(2)   ...

(3)   Improving the design quality of residential apartment development aims—

(a)   to ensure that it contributes to the sustainable development of New South Wales—

(i)   …, and

(ii)   by being a long-term asset to its neighbourhood, and

(iii)   …, and

(b)   to achieve better built form and aesthetics of buildings and of the streetscapes and the public spaces they define, and

(c)   …, and

(d)   …, and

(e)   …, and

(f)   …, and

(g)   …, and

(h)   ...

(4)   This Policy aims to provide—

(a)   consistency of policy and mechanisms across the State, and

(b)   a framework for local and regional planning to achieve identified outcomes for specific places.

54. He then took me to the chapeau in cl 4, “Application of policy”, to the application criteria set out in cl 4(1)(a),  (b) and (c), noting that there was no reference to questions of subjective opinion, satisfaction or any evaluative process in determining whether the here relevant test in cl 4(1)(a)(ii) was met or not. The question of whether something was substantial, for present purposes, was a question of fact and degree to be determined objectively, he submitted.

55. For the present contest, he proposed that the additional area encompassed by Mr Lane's development (of 53 square metres) does not define the scope of what might be “substantial” for the purposes of this test.

56. He then took me through a number of provisions of SEPP 65 which he proposed supported Ms Ross's contention that cl 4(1)(a)(ii) gave rise to a question of jurisdictional fact. For reasons later set out, I do not need to engage further with this point and I do not set out what he submitted in this regard.

57. Mr Farland then took me to “Schedule 1 Design quality principles” of SEPP 65, as he submitted that relevant elements of the schedule would assist in informing what is “substantial” for the purposes of the test engaged by cl 4(1)(a)(ii). He proposed that four of the principles in the schedule were relevant for this purpose. I set out below the principles upon which he relied and a brief note as to his submission concerning them following on from the principle.

Principle 1: Context and neighbourhood character

Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.

Responding to context involves identifying the desirable elements of an area’s existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.

Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.

58. Mr Farland submitted it was relevant that the height of the building will be visible and is altered by the addition of a new floor, making it a seven‑level building rather than a six‑level one.

Principle 2: Built form and scale

Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

Good design also achieves an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

59. He next submitted that scale is relevant in the present context (with the scale of the existing building being changed by Mr Lane's proposed development).

Principle 6: Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being.

Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.

60. He noted that, on Ms Ross’s case, Mr Lane’s proposed development did not constitute positively to the amenity of the neighbours.

Principle 9: Aesthetics

Good design achieves a built form that has good proportions and a balanced composition of elements, reflecting the internal layout and structure. Good design uses a variety of materials, colours and textures.

The visual appearance of a well designed apartment development responds to the existing or future local context, particularly desirable elements and repetitions of the streetscape.

61. The proposed development was clearly visible from an oblique perspective, he noted (citing folio 407 of Exhibit B). It did not respond to the local context, he submitted.

Ms Reid’s oral submissions

62. It is not necessary, for reasons later explained, to record Ms Reid’s submissions concerning the issue of where SEPP 65 embodies a jurisdictional prerequisite. I turn, therefore, to her submissions as to whether Mr Lane’s proposed development should be regarded as being “the substantial redevelopment or the substantial refurbishment of an existing building”.

63. Ms Reid submitted that Mr Lane's proposal clearly constituted redevelopment. She further submitted that the necessary comparison must be founded on an examination of Mr Lane's proposed development with the totality of the building within which, and upon which, it is proposed. This was the complete built form on the site.

64. She submitted that an examination of folio 491 of Exhibit B disclosed that the existing area calculation of Mr Lane's present apartment showed that it had a gross floor area of 94.5 square metres; a balcony of 8.1 square metres and a planter box of 1.3 square metres. The comparison, she submitted as being appropriate, was that the area of Mr Lane's apartment, if his proposed development was to be constructed, would have a gross floor area of 146.8 square metres and a terrace of 20.5 square metres with no planter box. These comparative numbers, she submitted, demonstrate that, in the overall context of the existing building, that which is sought by Mr Lane's proposed development could not be regarded as “substantial”, no matter how it might be characterised.

65. Ms Reid next took me to folio 504, a folio from the “view from the sun” diagrams as at the winter solstice (particularly the depictions of the “view from the sun” at 10.00 and 11.00 am). A copy of these images are reproduced as Annexure D to this judgment.

66. As to qualitative factors to be considered for present purposes, Ms Reid submitted that, as a matter of public perception, the only change that would be observed from the public domain would be portion of Mr Lane's proposed development slightly below, and partially hidden by, the lift overrun on the existing building. This view would be an oblique one, viewed up the side setback of the existing building, from Onslow Avenue.

67. She further submitted that it was relevant to have regard to the fact that there were no changes in the landscaping to the existing building, nor any alteration to access arrangements for it.

68. Ms Reid responded to Mr Farland’s submission that the nature of Mr Lane's proposed development in the context of its extent, when assessed against Mr Lane's existing apartment, should, virtually automatically, cause me to conclude that the engagement of SEPP 65 was triggered. She submitted that, in the context of an apartment development containing several hundred units, even what amounted to a complete gutting of an individual apartment for the purposes of refurbishing it could not give rise to a conclusion that such a proposal constituted “substantial redevelopment or substantial refurbishment of an existing building” because that would lead to an absurd breadth of application of the policy.

69. I am satisfied, in this regard that she is correct and that a very expansionary as view proposed by Mr Farland is not to be adopted. What is necessary to be considered here is the nature and the extent of Mr Lane's proposed development, assessed in the context of the building in, and on, which it is proposed to be effected. That does not mean, for reasons later addressed, that the concept of “part of a building” does not require consideration in a limited and specific context.

70. Toward the end of her oral submissions, Ms Reid summarised what she described as the relevant quantitative factors engaged for my consideration of whether or not Mr Lane’s development constituted “substantial redevelopment” for the purposes of engaging cl 4(1)(a)(ii) of SEPP 65. She listed the following matters as being relevant for the purpose of demonstrating that it was not “substantial redevelopment”:

1. That which had been approved by the Council was redevelopment of only one apartment in a complex which comprised 25 apartments;

2. There was no creation of a new apartment thus there was no increase in the number of apartments in the complex;

3. The increase in floor area of Mr Lane’s apartment did not create any additional bedrooms with the result that there would be no increase in the overall population residing in the complex;

4. There was no non‑compliance with any of the planning controls contained in the LEP or the DCP;

5. There was no alteration to the basement parking arrangements serving the complex; and

6. There would be no increase in on-street parking demand resulting from the proposed development.

71. Although there would be increases in both the floor space ratio (FSR) of the overall complex and in the height of the element of the complex where the proposed development would be located, those increases were minor (as earlier set out in her detailed analysis of the proposal) and that, despite Mr Lane’s proposed development, the complex would remain comfortably compliant with the development standards for FSR and building height set by the LEP.

72. To the extent that view impact might play some part in my assessment (which I did not understand that she conceded was appropriate), she submitted that Ms Ridler’s assessment, adopted by the Council’s local planning panel, showed the view impacts were not significant and was appropriate to be taken into account.

73. She submitted that, in summary, all of the relevant factors to be considered, both qualitative and quantitative when taken together, should lead to the conclusion that cl 4(1)(a)(ii) was not triggered.

Mr Farland’s oral submissions in reply

74. For reasons later set out, it is not necessary to address Mr Farland’s oral submissions in reply concerning the jurisdictional fact issue. I therefore turn to matters he raised in reply on whether, as a matter of objective fact, SEPP 65 was triggered by Mr Lane’s proposed development.

75. Mr Farland took me to folios 407 and 409 of Exhibit B. These folios contained images in the Statement of Environmental Effects submitted to the Council in support of Mr Lane's DA. Folio 407 shows an oblique view of the existing building as seen from Onslow Avenue. A copy of this image is reproduced as Annexure A to this decision. I later address its relevance in my consideration of whether or not Mr Lane's proposed development triggers SEPP 65.

76. Mr Farland submitted that it was more likely that what Mr Lane proposed was redevelopment (but I understood him to be proposing that it did not matter whether this was the correct characterisation or that refurbishment might equally apply).

77. He submitted that it was a question of fact and degree whether the triggering test in SEPP 65 applied to part of a building (given that the EPA Act’s statutory definition of “building” permitted consideration of only part of a building). He submitted that it was not necessary, in these proceedings, to give consideration to Mr Lane's proposed development in the context of the whole of the building in, and on, which the development was proposed to take place. Consideration of it on a part‑building basis was appropriate here. On the basis of its assessment against only the relevant part of the building, the triggering test for the applicability of SEPP 65 was clearly satisfied, he submitted.

78. He proposed that it was also necessary to have regard to Mr Lane's proposed development in the context of the neighbourhood within which it is proposed. For these purposes, impacts on other properties require consideration, he submitted. He proposed that I should conclude that there had been an inadequate view assessment of the initial potential impact of the proposed development and that the subsequent assessment, as submitted to the Council's local planning panel, did not have adequate regard to those impacts. This, he submitted, was a factor to be taken into account in the assessment I was required to undertake.

79. He further submitted that, on a qualitative basis, consideration of the view impacts depicted on folios 423 and 424 of Exhibit B demonstrated that there was a significant qualitative impact required to be considered as part of my objective factual determination process.

80. Mr Farland submitted that Mr Lane's proposed development would be able to be viewed from the public domain (across Onslow Avenue) and, obliquely, from the footpath outside the existing building on Onslow Avenue, looking up its side setback towards the lift overrun. He submitted that these views were factors to be taken into account in my assessment as to whether the proposed development was “substantial” in the triggering sense arising from SEPP 65. He concluded by submitting that the assessment required was an objective one rather than a subjective one, having regard to all the relevant facts and circumstances.

81. All of these matters taken together, as I understood his overall submissions, should lead me to conclude that, as a matter of objective fact, Mr Lane's proposed development constituted a substantial redevelopment of the building within which Mr Lane's apartment was located.

Consideration

Jurisdictional Fact

82. I have earlier set out the three matters which potentially require determination in these proceedings (with determination of the second matter being contingent on my conclusion on the first, and my determination of the third being contingent on my conclusions on the earlier two). It is, therefore, appropriate to turn, first, to consider whether or not cl 4(1)(a)(ii) of SEPP 65 gives rise to the necessity to determine, objectively, a jurisdictional fact as a mandated precondition to considering and making a decision as to the appropriateness of Mr Lane's proposed development.

83. This issue can be resolved comparatively simply for the purposes of these proceedings only.

84. I reproduced earlier an extract from the decision of Sheahan J in Barton Securities where his Honour addressed the question as to whether cl 4(1)(a)(ii) of SEPP 65 did require the determination of a jurisdictional fact antecedent to the conventional assessment process of a development application in circumstances where the project for which approval was sought fell, potentially, within the scope of cl 4(1)(a)(ii) of the Policy.

85. As can be seen from [98] in the extract from Barton Securities, his Honour's reasoning in explaining why he had reached the conclusion there set out was not the subject of any detailed analysis.

86. For present purposes, rather than considering whether or not his Honour was “plainly wrong” in the conclusion he reached (in the fashion discussed by the Court of Appeal in Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [294]-[295]), given the conclusion that I have reached in my independent analysis of the factual matrix to be applied to consideration of Mr Lane's proposed development, I propose to proceed by taking Ms Ross's case on this point at its highest. By doing so, I can proceed on the assumption that cl 4(1)(a)(ii) of SEPP 65 does require the determination of a jurisdictional fact and, therefore, proceed straight to explaining why I am satisfied that Mr Lane's proposed development is neither “substantial redevelopment of an existing building” or “substantial refurbishment of an existing building”.

Clause 4(1)(a)(ii) of SEPP 65

Introduction

87. As a consequence of my conclusion that I should assume (for present purposes only) that cl 4(1)(a)(ii) of SEPP 65 does involve the determination, objectively, of a jurisdictional prerequisite to the exercise of the power to grant development consent by the repository of that power (here, the Council's local planning panel), I now turn to address the matters pressed by Mr Farland and Ms Reid as requiring to be considered in this process.

88. First, it is appropriate to note that the ordinary principles of statutory construction of considering the text and context of the words of cl 4(1)(a)(ii) are engaged. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [70] and [71], made it clear that the meaning of the provisions of a statute is to be ascertained by examining the context in which the language of those provisions is used and seeking to give effect to the purpose and language of the provisions.

89. It is to be noted that, in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 (Woolworths), at [60], examples were set out by Spigelman CJ where questions of a jurisdictional fact were engaged. I do not need to set out those examples for present purposes, given the assumption that I have made, and, for the reasons explained above, that I should proceed on the basis that cl 4(1)(a)(ii) gives rise to consideration of whether or not a jurisdictional prerequisite exists.

90. I am also provided with little assistance by the decision of Sheahan J in Barton Securities, given the significant factual differences of scale and extent of the development which his Honour describes and the building context within which it was proposed to be effected. Even had his Honour's factual description been more expansive than the comparatively scant detail provided, it is clear that the existing building in Barton Securities (containing, as his Honour recorded, only four apartments) was of a more confined nature and the extent of the proposed redevelopment (apparently in absolute terms, but certainly in relative terms) was proposed to be on a larger scale than here proposed by Mr Lane.

91. What is appropriate, in the present context, is the brief summary in Woolworths, at [61], providing a basis for understanding how the necessary assessment task is to be approached:

61   In each case. It was the overall statutory context that proved determinative as to whether or not Parliament intended the existence of the fact to both objectively exist and be essential, notwithstanding the element of fact and degree, or even of judgement, that was required in the process of determining whether or not the relevant fact existed.

92. For present purposes (on the assumption that the drafters of SEPP 65 intended that consideration of a jurisdictional test was involved), I am now required to undertake an objective determination, on the facts which are here available concerning Mr Lane's proposed development, as to whether or not it comprises “substantial redevelopment and/or substantial refurbishment of an existing building”.

93. Although Mr Farland, in his analysis of the assessment process undertaken by Ms Ridler and, subsequently, by the Council's local planning panel, focused significantly on externalities, including, particularly, anticipated view impacts on the various outlooks from rooms in apartments in other buildings in the vicinity, I am satisfied that such issues do not arise for consideration on a proper understanding of that which requires to be determined for the purpose of establishing whether or not the processes mandated by SEPP 65 are here engaged or not. This is because the language of cl 4(1)(a)(ii) is clearly confined to a consideration of the activities proposed to be undertaken to an existing building rather than into the external impacts on other buildings or elements of them (or their occupants or residents), that would arise from the carrying out of the proposed development.

94. Although the High Court has said that it is permissible to read additional words into a statutory provision such as cl 4(1)(a)(ii) (see Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9), if it is necessary to do so to enable giving full effect to the operation of the provision, there is no obvious lacuna in cl 4(1)(a)(ii) that would require such an importation of the requirement to have regard to such externalities. It is, therefore, necessary that I confine myself as to whether the nature of that which has been proposed by Mr Lane constitutes “substantial redevelopment” or “substantial refurbishment” of an existing building.

The definitions and the use of dictionaries

95. The Court of Appeal has cautioned overreliance on dictionaries, as explained by Basten JA in Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188, at [77]-[78]:

77.   … Resort to dictionaries to determine the meaning of a word used in a legal context is rarely favoured. Such judicial disfavour is not a result of some dismissive or precious attitude towards the compilers of dictionaries. The point is rather that dictionaries reflect common usage and common usage may not be reflected in a particular statutory context. Thus, it used to be said that the ordinary meaning of a word, other than a technical term, is a question of fact, whereas the construction of the statutory provision in which the word is found is a question of law. Since Collector of Customs v Agfa-Gevaert Ltd that distinction is no longer applied. As explained by Lord Hoffmann in R v Brown, referred to in Agfa-Gevaert:

“The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.”

78.   That is not to say that dictionaries may not be helpful, or are not used, although they are rarely referred to in judgments. Their function is, however, limited.

96. I set aside any detailed consideration of dictionary definitions (either as cited by Sheahan J in Barton Securities or by Ms Reid in her written submissions here), as I do not consider that they are of significant assistance and are to be approached with caution in having regard to the meaning of the triggering phrase in SEPP 65 (House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498; (2000) 106 LGERA 440; [2000] NSWCA 44, at [25] ff).

97. It is, however, necessary to consider the statutory definition of the word “building”, as that is mandated by the EPA Act as the parent enactment for SEPP 65. However, that, too, needs to be approached with some caution in the present circumstances.

98. I have earlier set out the extract from Mr Farland’s written submissions, where he proposed that an expansionary interpretation of that aspect of the statutory definition of “building” encompassing “part of a building” should apply so that any substantial renovation or substantial refurbishment of a single apartment could automatically trigger engagement of SEPP 65. The tenor of his oral submissions on this point were also expansionary.

99. As Ms Reid put in her oral response to this proposition, such a broad expansionary position could lead to a quite inappropriate conclusion, one which would be antithetical to the intent of the planning issues sought to be addressed by SEPP 65. However, on a more limited basis, the concept of “part of a building” does require to be addressed.

100. Even if (as would appear appropriate) it was to be concluded that Mr Lane's proposed development constituted substantial redevelopment or substantial refurbishment of his apartment, that does not, having regard to the text and context of the triggering provision, constitute satisfaction of cl 4(1)(a)(ii) of SEPP 65. The extent of that which is encompassed by Mr Lane's proposed development must necessarily be examined for present purposes as to how his proposed works are to be seen in the light of the overall context of the building in, and on, which they are to be effected.

The “existing building”

101. I earlier noted that Mr Farland had submitted that, as a consequence of the definition of “building” in the EPA Act, encompassing “part of a building”, Mr Lane's approved development was not excluded from potentially being within the triggering provision of SEPP 65.

102. I accept that, for starting purposes in this interpretation, this is a correct position. There is nothing in the text or context of the requirement for there to be a “substantial redevelopment or substantial refurbishment” of an existing building that those activities must necessarily be to the entirety of such an existing building. What is engaged is the question of whether Mr Lane's development should, objectively considered, be regarded as “substantial” in the context of the existing building within which his apartment is located.

103. A convenient starting point for this analysis is to determine what constitutes the “existing building” for the purposes of cl 4(1)(a)(ii) of SEPP 65. This arises because the complex within which Mr Lane's apartment is located comprises two multi-storey residential apartment elements constructed on the common pediment of the basement car‑park serving the entirety of the complex.

104. In this context, Ms Reid submitted that the “existing building”, for present purposes, should comprise the entirety of the complex and that the necessary comparison for assessing satisfaction or otherwise of cl 4.2 of SEPP 65 should be undertaken on that basis. I am unable to accept this submission as an absolute proposition.

105. It is clear that a dispassionate observer, from either Onslow Avenue or Billyard Avenue, observing the complex whilst moving along either of those thoroughfares on foot or in a passing vehicle would clearly perceive two separate and distinct buildings, albeit ones within a common curtilage. This necessitates, I am satisfied, that the analysis for the purposes here engaged must not be confined only to the whole complex that hosts the location of Mr Lane's apartment and his proposed development. This consideration is, however, the first step in addressing the jurisdictional question.

The relevant facts to be weighed

106. A useful starting point in this process is to consider Ms Ridler's evidence concerning the process which she undertook in determining that cl 4(1)(a)(ii) of SEPP 65 was not engaged. As I have earlier noted in the context of my description of Mr Farland’s successful application to reopen Ms Ross's case, Ms Ridler's evidence is not subject to any restriction as to its use and relevance. However, I do not treat that which I extract below as expert evidence, but merely as to setting out matters potentially appropriate to which I might have regard, in my objective determination of whether cl 4(1)(a)(ii) does operate to engage the provisions of SEPP 65 and, as a consequence, the Apartment Design Guide.

107. In her affidavit of 3 August 2021, at paragraph 8, Ms Ridler addressed the reasons why she had concluded that SEPP 65 did not apply to Mr Lane's proposed development. In paragraph 8(c), she set out the factual bases upon which she had concluded that Mr Lane's proposed development did not involve the substantial redevelopment or the substantial refurbishment of an existing building. She gave three reasons for reaching this conclusion. They were:

i.   the proposed works comprise alterations and additions to a residential flat building comprising one additional storey containing a new living space and outdoor terrace to an existing unit (unit 11). The additional storey is located on the Southern side of the building and does not extend over the entire floor plate.

ii.   the proposal did not include any works to any other units or floors within the building and did not result in any additional units above what currently exists in the building. The additional gross floor area (GFA) of the proposal is 52.3sqm, which equates to only 1.7% of the overall GFA of the building (following approval).

iii.   the proposed built form is modest, sits below the existing height of the building (lift overrun) and is set back from the street.

108. I set out the above extract from Ms Ridler's affidavit, not for the purposes of me adopting her reasoning, but because I consider that it accurately sets out three relevant factors to which I should have regard in my objective assessment as to whether or not clause 4 (1) (a) (2) of SEPP 65 is engaged.

109. For this purpose, I disregard her assessment in (iii) as to the modesty of the proposed built form as that is a matter of her opinion rather than a statement of fact. The determination of this jurisdictional issue is to be made by me on an objective assessment of the facts concerning Mr Lane's proposed development and not by the adoption of any opinion expressed by Ms Ridler.

110. I therefore next turn to list the other factors that require to be considered in an objective assessment of whether the SEPP 65 triggering provision in cl 4(1)(a)(ii) is satisfied. As some might be contextualised as being relevant in both a qualitative and quantitative fashion, I have not attempted to divide them into these two categories. Those factual matters (and the source from which each of them is derived) are set out below:

The approach to determining characterisation of Mr Lane’s development

111. As Bignold J observed concerning whether a development was substantially the same as an existing development, such an analysis should be undertaken combining a qualitative and quantitative assessment (albeit in the context of a quite different statutory test under the then terms of the EPA Act) (Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 at 309). This approach is that which was advocated by Ms Reid for the present analysis and I am satisfied it is appropriate in these present circumstances.

112. Although Mr Farland proposed that I should have regard to the external impacts of Mr Lane's proposed development on others (such as on the views from Ms Ross's apartment and the apartments of others who objected to Mr Lane's proposed development), I reject this proposed approach.

113. I accept that, for the purposes of assessment of the potential impact of Mr Lane's proposed development on the outlook from portions of Ms Ross's apartment, the view impact assessment commissioned by her concluded that impact was substantial/significant. However, that external impact does not, in and of itself, demonstrate that Mr Lane's proposed development should be regarded as substantial for the purposes of cl 4(1)(a)(ii) of SEPP 65. An identical impact on outlooks from Ms Ross's apartment could equally be caused by the simple construction of a single screening barrier to the same height and length as is proposed by Mr Lane's development. Such a barrier or wall, if confined to such a structure, could not be described as “substantial” despite having the same impact as Mr Lane's proposed development on Ms Ross's apartment’s outlooks.

114. This position clearly demonstrates why the objective factual assessment which I am undertaking excludes externalities such as private domain impacts advanced by Mr Farland as requiring assessment as part of the cl 4(1)(a)(ii)) test I am here considering.

115. It is clear that what is required to be assessed, on a qualitative and quantitative basis, is whether that which is proposed by Mr Lane is “substantial” in the context of the existing building.

116. I note that, in this context, it matters not whether Mr Lane's proposed development is to be categorised as redevelopment or refurbishment. Although there was agreement that it was likely to be characterised as redevelopment, the parties were content to proceed on the basis that, for the purposes of the SEPP 65 test, it was one or the other without the necessity to determine which it should be. I accept that that this is the appropriate basis upon which to proceed.

117. I do, however, accept that an element to be taken into account in my assessment of whether Mr Lane’s proposed development should be regarded as being “substantial redevelopment or substantial refurbishment of an existing building” is the extent to which his proposed development can be perceived in the context of the existing building. This element, to be taken into account in my objective factual assessment, does not involve consideration of external impacts of Mr Lane’s proposed development, but does engage consideration of how his proposed development will be viewed from the public domain in the overall context of the existing building upon which it is proposed to be erected.

118. This engages my consideration, as part of the qualitative and quantitative assessment to be undertaken, of the view which is available to me depicting the existing building, as is, when viewed from Onslow Avenue, Elizabeth Bay. This view, taken from Exhibit B, can be seen at Annexure A.

Other elements of SEPP 65

119. Mr Farland took me through a range of elements in SEPP 65, particularly in Sch 1, which he said would be engaged for an assessment of Mr Lane's proposed development, if that for which Mr Lane had been granted approval by the Council was properly, on its objective facts, to be categorised as “substantial redevelopment of an existing building” or “substantial refurbishment of an existing building” (or both).

120. However, what might be engaged, post facto, if such a determination was to be made, cannot provide a basis for undertaking the objective assessment, on the assumption of a jurisdictional fact determination needing to be made, as to whether Mr Lane's development was to be categorised in either or both of those fashions.

121. As a consequence, it is not necessary for me to set out or undertake any analysis of those matters, which would potentially be engaged if a positive jurisdictional determination was made mandating the engagement of SEPP 65, as I have concluded that there is no such basis, determined objectively on the facts of Mr Lane's development, to conclude that SEPP 65 should have been engaged. Therefore, there is no need for further consideration of other provisions in SEPP 65.

122. For reasons earlier explained, I have proceeded on the basis that cl 4(1)(a)(ii) of SEPP 65 poses a jurisdictional question which, if answered in the affirmative, engages the Policy for the purposes of any development application to which it then applies. What is therefore engaged is a jurisdictional gateway.

123. It is only if the gateway is open (in this instance, if Mr Lane's proposed development is to be regarded as “substantial redevelopment or substantial refurbishment of an existing building”) does it then become necessary to engage with the full range of matters embodied in the Policy. If the gateway is closed, all the other provisions of SEPP 65 cannot have any work to do by virtue of them being provisions of the Policy.

124. To the extent that matters contained in Sch 1 of the Policy, for example, might arise for consideration as part of a proper merit assessment pursuant to s 4.15 of the EPA Act, they are engaged for that reason (and that reason alone), not by virtue of them being an element of SEPP 65. To that extent, Mr Farland’s submission, in the closing sentences of paragraph 26 of his written submissions, that:

… The focus of SEPP 65 is on the design quality of residential apartment development, not on compliance with numerical development controls such as floor space. The question of whether the development is a substantial redevelopment should be answered having regard to the objectives and mechanisms of SEPP 65.is misplaced and other elements of SEPP 65 cannot be engaged in favour of me determining that, as a matter of objective fact, the relevant jurisdictional question posed by cl 4 should be answered in the affirmative,

is not relevant.

125. However, if I am wrong in this regard, I have also considered whether the aims of SEPP 65 to which Mr Farland referred me and to the elements in the principles contained in Sch 1 to the Policy would cause me to reach a different conclusion on whether or not the cl 4 gateway was open.

126. I am satisfied that this approach (one which I consider would be erroneous) would not alter my conclusion that, as a matter of objective fact, Mr Lane's proposed development constitutes neither substantial redevelopment nor substantial refurbishment of an existing building. This is because, although the matters to which he referred me in SEPP 65 could be regarded as tipping the qualitative element of my assessment some a little in favour of the position for which Mr Farland advocated, that could not outweigh the overwhelming weight of the quantitative analysis element leading to the conclusion that SEPP 65 does not apply to Mr Lane's proposed development.

Matters of fact to be weighed

From the submissions on the basis of the entire development on the site

127. The following facts are taken from Mr Farland’s submissions (with citation given of the relevant written submission source):

1. The cost “indicated on the DA was $385,000” (Mr Farland’s written submissions at paragraph 15);

2. “The existing gross floor area was specified as 94.47 SQM and the proposed gross floor area as 134.2 SQM” (Mr Farland’s written submissions at paragraph 16);

3. “The construction of a new storey on the southern portion of the building, containing a living space, bathroom and outdoor terrace area” (Mr Farland’s written submissions at paragraph 19(a));

4. There is to be the “installation of an internal circular stairwell connecting the new storey to the existing unit 11” (Mr Farland’s written submissions at paragraph 19(b));

5. The northern terrace of the existing unit is to be enclosed to create a wintergarden (Mr Farland’s written submissions at paragraph 19(c));

6. The proposed development involves work on the roof of the existing building being part of the common property (Mr Farland’s written submissions at paragraph 20);

7. In numerical terms, the increase in gross floor space is relatively modest (Mr Farland’s written submissions at paragraph 26);

8. Adding an additional storey changes the built form and aesthetics of the building (Mr Farland’s written submissions at paragraph 27); and

9. If constructed, the development “will form part of the streetscape of Onslow Avenue and will be visible from public spaces” (Mr Farland’s written submissions also at paragraph 27);

10. “The development involves additional residential accommodation in the new storey” (Mr Farland’s written submissions at paragraph 29); and

1. The development will create new external facades by addition of a new storey (Mr Farland’s written reply submissions at paragraph 29).

128. The following facts are taken from Ms Reid’s written submissions at paragraph 35 (but I have stripped out any evaluative propositions there advanced by her):

1. The proposal involves alterations and additions to one unit in a residential apartment development comprising 28 units. As a percentage of the total number of units, the proposal relates to 3.57% of the development;

2. The proposal does not increase the number of units in the development;

3. The increase in floor space is 1.8% of the existing floor space;

4. The additional floor space is to unit 11 and will create a living room and terrace on the existing roof above unit 11;

5. The additional floor space is generally located behind the existing fire stair and lift motor room on the southern side of the building;

6. The total proposed floor space ratio of the development is 2.05:1, where the LEP permits an FSR of 4.5:1;

7. The proposed built form sits below the existing height of the building, referenced by the lift overrun which is setback from Onslow Avenue.

129. None of the above matters advanced by Mr Farland or Ms Reid are, as I understand the position, in dispute.

130. It is also appropriate to make the following observations concerning submissions made by Mr Farland at paragraph 25 of his written reply submissions where, at paragraph 25(c), Mr Farland submitted that:

… as such, [the proposed development] adds to the scale bulk and height of the existing building.

131. Whilst I have earlier noted that there is an impact on the scale and bulk of the existing building, given that Mr Lane's proposed development is no higher than the existing lift machinery structure of the existing building (and partially concealed by it), I do not accept that the broad statement that the proposed development will “add to the height of the existing building” can be regarded as correct.

132. Whilst I have also noted that I have accepted Mr Farland's submission that Mr Lane's proposed development makes a change to the built form of the existing building, his submission in paragraph 25(d) that this is a “significant” change is a matter for my consideration in this evaluative process.

133. Given what can be seen from Annexure A of the existing view of the building along the side setback from Onslow Avenue, I am satisfied that the fact that Mr Lane's proposed development is below the height of, and, at least in part, hidden by, the lift machinery element at the upper level of the existing building does not result in a significant change to the built form of that existing building.

134. With respect to the value of Mr Lane's proposed development, it is reasonable to assume that the total cost is significantly less than the value of a single unit in the complex (but unnecessary to be quantified).

Facts to be considered but best depicted visually

135. This judgment has six annexures to it. Each of them provides, relevantly, a depiction of an aspect of the site and/or of Mr Lane's proposed development that requires to be taken into account as part of my objective consideration as to whether or not cl 4(1)(a)(ii) is triggered or not. I make the following observations concerning each of these annexures.

136. Annexure A is the upper photograph at folio 407 of Exhibit B. Its caption explains what it depicts. Mr Lane's proposed development is to be constructed alongside the lift machinery housing depicted above the present habitable levels on the site. The proposed development extends (as can be seen in Annexure B (lower image)) toward the street from this lift machinery structure but is also lower than, and partially obscured by, it.

137. Annexure B, taken from folio 410 of Exhibit B, shows only the southern and northern elevations of the Onslow Avenue‑facing element of development on the site. The location of the proposed development, relative to the lift machinery structure on the site (both as to height and location), can be seen on the northern elevation.

138. Annexure C (Exhibit B, folio 501) shows the public domain viewing lines, relevantly, from the western side of Onslow Avenue. Although this diagram says:

At an angle of 26° from the opposite side of Onslow Avenue, the roof of the addition is not visible and hidden by the existing parapet. There is, therefore, minimal impact on the street curtilage.

139. The viewing angle actually depicted from that location, I am satisfied, is not reflected in the above text, but a small portion of the western leading edge will able to be viewed. I am satisfied that the view impact from that location will be minimal.

140. Annexure D (Exhibit B, folio 504) shows the “view from the sun” positions at 10.00 am and 11.00 am at the winter solstice. The views in the upper portion of the annexure show those perspectives without the insertion of Mr Lane's proposed development, whilst those below show the same perspective with the insertion of Mr Lane's proposed development. These images also make clear the relative vertical relationship of the Onslow Avenue‑facing and Billyard Avenue‑facing elements of the existing development on the site.

141. Annexure E (Exhibit B, folio 484) shows the comparative extent of Mr Lane's proposed development, at its new storey level, compared to the overall roof footprint of the existing building.

142. Annexure F (taken from Exhibit B, folio 484) is a cropped element from the left‑hand, lower portion of Annexure E. It provides an understanding of the extent of the footprint of the proposed new level for Mr Lane's proposed development when compared to the total footprint of both built elements on the site.

143. For present purposes of assessing whether the cl 4(1)(a)(ii) provision of SEPP 65 triggers engagement of that Policy for Mr Lane's proposed development on a “whole complex” basis, I have had regard to all of the above factors (whether described by me in summarising the advocates’ submissions or referenced to the annexures to this judgment). I am satisfied that, as a matter of objective fact, when all these are taken together, it is not possible to conclude that Mr Lane’s proposed development constitutes substantial redevelopment and/or substantial refurbishment of an existing building.

144. In reaching this conclusion, it is to be noted that I have not endeavoured to ascribe weighting to any of the individual factors requiring to be assessed. What I have needed to do, in the language of criminal proceedings, is to undertake an “instinctive synthesis” (here on an objective basis) of all the factual matters engaged by the submissions and the evidence in these proceedings.

145. Although all of these matters are to be bundled together for the purposes of such an overall objective assessment, Annexures D and F in combination (and Annexure D in its own right) warrant reaching that conclusion without having regard to any of the other individually described or visually presented matters requiring to be considered.

“Part of a building”

146. For the reasons set out above, I am satisfied that Mr Lane’s proposed development cannot, as a matter of objective fact, be regarded as either a substantial redevelopment or substantial refurbishment of the existing building complex within, and upon, which it is proposed to be located. On this basis, Ms Ross's application to have Mr Lane's DA declared void and of no effect must fail.

147. However, Mr Farland raised, during the course of his written and oral submissions, the fact that the definition of “building” in the EPA Act encompassed “part of a building”. Whilst the context in which he pressed this aspect of the definition was seeking to have me confine my consideration to, as I understood him, only that quite narrow portion of the building where Mr Lane's apartment was located (a proposition which I reject, for the reasons advanced by Ms Reid as earlier described), the fact that there are two separate built elements on the site above the common basement car‑park area is a matter requiring consideration.

148. This factor only alters one of the parameters which I have set out in the above list. That factor is the extent to which Mr Lane's present apartment and his apartment if his proposed development proceeds are a proportion of the western element only of the complex.

149. Whilst the GFA percentage calculations earlier set out are applicable, as I understand it, to the GFA of the two building elements, I do not have (as I understand the position from a reading of Exhibit B) a nominated GFA for merely the western element of the complex closest to Onslow Avenue.

150. However, I do have a view encompassed within Exhibit B, at Annexure D, which shows the relative heights of the two built elements. I also have, from Exhibit B at Annexure F, a plan which shows the footprint of each of the two built elements on the site.

151. Addressing the triggering test in cl 4(1)(a)(ii) of SEPP 65 on the basis of this more limited Onslow Avenue element of the built form on the site does alter the qualitative and quantitative objective assessment process a little toward the potential for a conclusion that the triggering provision is satisfied. However, taking all of the other elements as earlier described, and making an assessment on this altered basis, I am unable to conclude that Mr Lane's proposed development, as a matter of objective fact, could be regarded as a substantial redevelopment or substantial refurbishment of that part of the existing building (even if the “existing building” is taken to be that part of the built complex on the site within which Mr Lane's apartment is located). My earlier conclusion to be drawn from Annexure D remains.

152. It therefore follows that, even on this more favourable interpretation for the valid purposes of assessing Ms Ross's application to have Mr Lane's development consent declared void and of no effect, her application must fail - resulting in the Amended Summons being dismissed even when considered on this alternative basis more favourable to Ms Ross.

Conclusion

153. As I am satisfied that, as a matter of objective fact, Mr Lane's proposed development cannot be regarded as “the substantial redevelopment or the substantial refurbishment of an existing building”, it follows that Ms Ross's Amended Summons must be dismissed.

Discretion

154. I afforded the parties the opportunity to provide further written submissions following my granting Mr Farland leave to reopen on matters that would be relevant to the question of exercise of discretion had I found that SEPP 65 was triggered.

155. However, given that I have determined that, as a matter of objective fact, Mr Lane's proposed development is neither “substantial redevelopment” nor “substantial refurbishment of the existing building” within which his apartment is located, it is not necessary to address matters of discretion (helpful although the parties’ submissions on this point would have been).

Costs

156. In Class 4 proceedings, costs usually follow the event. There is nothing in these proceedings that would cause me to depart from that position. As a consequence, Ms Ross is to pay Mr Lane's costs of the proceedings.

Orders

157. It follows from the foregoing that the orders of the Court are:

1. The Amended Summons is dismissed;

2. The Applicant is to pay the First Respondent's costs of the proceedings as agreed or assessed; and

3. The exhibits are returned.

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Annexure A

Figure 3: Site viewed from Onslow Avenue

Annexure B

Annexure C

Annexure D

Annexure E

Annexure F

Decision last updated: 05 November 2021