Randwick Council v Fusion Developments Pty Ltd

[2023] NSWLEC 19

Land and Environment Court

New South Wales

Medium Neutral Citation:

Randwick Council v Fusion Developments Pty Ltd [2023] NSWLEC 19

Hearing dates:

16 December 2022

Date of orders:

17 March 2023

Decision date:

17 March 2023

Jurisdiction:

Class 1

Before:

Moore J

Decision:

See orders at [131]

Catchwords:

APPEAL - appeal against Commissioner’s decision in Class 1 proceedings - local environmental plan requires development on site to exhibit design excellence - the plan sets criteria for assessment of design excellence - plan also makes provision requiring a “competitive design process” - the plan also permits dispensation to be given from requirement for a “competitive design process” - Commissioner concludes proposed development demonstrates design excellence - Commissioner exercises discretion to dispense with “competitive design process” ‑ consideration of whether Commissioner’s exercise of discretion miscarried - no error in Commissioner’s exercise of discretion to dispense with “competitive design process” - appeal dismissed - Applicant ordered to pay Respondent's costs of the appeal

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979, s 56A

Land and Environment Court Rules 2007, r 3.7

Randwick Local Environmental Plan 2012, cl 6.21

Cases Cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Bellenger v Randwick City Council [2017] NSWLEC 1

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

Fusion Development Pty Ltd v Randwick City Council [2022] NSWLEC 1255

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63

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

Ross v Lane [2022] NSWCA 235

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

Category:

Principal judgment

Parties:

Randwick City Council (Applicant)
Fusion Developments Pty Ltd (Respondent)

Representation:

Counsel:
Mr J Lazarus SC (Applicant)
Mr T To, barrister (First Respondent)

Solicitors:
Randwick City Council (Applicant)
Mills Oakley Lawyers (Respondent)

File Number(s):

171593 of 2022

TABLE OF CONTENTS

Introduction

The Company's proposed development.

The basis for the Council's appeal

The relevant statutory provisions

Representation

The relevant evidence

The submissions before the Commissioner

Introduction

The oral submissions for the Council

The oral submissions for the Company

The submissions on appeal

The written submissions for the Council

The oral submissions for the Council

The written submissions for the Company

Consideration

Introduction

The relevant element of [117] of the Commissioner’s decision

The first of the Council’s complaints ‑ Ground 1

Introduction

Further consideration of the oral evidence before the Commissioner

The Company’s “Alternative Design Process” for its proposed design

Conclusion concerning the Council’s first complaint

The second of the Council’s complaint’s - Ground 2

Introduction

The oral evidence before the Commissioner

Conclusion

Costs

Orders

Judgment

Introduction

1. On 2 to 4 March 2022, Dickson C (the Commissioner) heard a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Randwick City Council (the Council) of a development application made by Fusion Development Pty Ltd (the Company).

2. On 23 May 2022, the Commissioner handed down her decision, a decision in which she determined that it was appropriate to grant development consent to the Company's proposal (Fusion Development Pty Ltd v Randwick City Council [2022] NSWLEC 1255).

3. The Council, being dissatisfied with the Commissioner’s decision, has appealed against it pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act). This provision of the Court Act is later set out. Such appeals are confined to ones raising questions of law.

The Company's proposed development.

4. The Company’s proposed development was amended (without opposition from the Council) during the hearing before the Commissioner. The Commissioner described the Company's development (as before her in its amended form for determination) at [6] of her decision in the following terms:

In its final form, the development application seeks consent for a mixed use development containing commercial tenancies and 141 boarding rooms over a single level of basement carparking. The development comprises a built form of two towers, the first of which steps from 11 to 16 storeys with the second a lower tower of five storeys. It incorporates landscaping, site works and the improvements detailed in the VPA.

5. The VPA (voluntary planning agreement) to which the Commissioner alluded had been described by her in [5] of her decision as having been accepted “by the Council, at the Ordinary Council Meeting of 28 February 2022”. The Commissioner next recorded that:

5   … The VPA proposes a number of footpaths, public realm and laneway improvements at the front and rear of the site. The development application was amended to include these additional areas of land within the site of the development and incorporate them into the works for which consent is sought.

6. The site and its specific planning context arising from special provisions in the Randwick Local Environmental Plan 2012 (the LEP) were also set out in the Commissioner’s decision. These were set out at [8] to [11] of the decision in the following terms:

8   The site, excluding the land the subject of the VPA, is legally identified as Lot 1 DP 129966 and Lot 1 DP 940263, known as 273‑275 Anzac Parade, Kingsford. The site area is 1275m².

9   Adjoining the site to the north is an existing mixed used development of 8-9 storeys with commercial uses at ground floor and upper-level residential apartments. This development occupies 255‑271 Anzac Parade, Kingsford.

10   Adjoining the site to the south is 277-279 Anzac Parade which contains a three storey mixed use development with access from Houston Lane to the rear. Adjoining that site is 289-291 Anzac Parade which is at the corner with Strachan Street. These two properties to the south of the site represent the remaining parcels of land that form, with the subject site, a Strategic Node Site as defined in DCP 2013.

11   The development application relates to part of a strategic node site delineated as K6 within the Kingsford Town Centre and more specifically the Kingsford Midtown Precinct as described by DCP 2013. Part E ‑ Specific Sites in DCP 2013 contains, at Section E6, development controls for the Kensington and Kingsford Town Centres.

7. The Commissioner determined that the Company’s development demonstrated design excellence (satisfying cl 6.21(3) and (4) of the LEP).

8. At [103] to [106], the Commissioner explained why she had so concluded. She said:

103 As noted at [73], the first three matters for consideration at cl 6.21(4) of LEP 2012 replicate those listed at cl 6.11(4) of LEP 21012. I adopt my findings in relation to those matters without replication.

104 I further note that in his evidence Mr Baker raises no specific concerns in regard to the additional matter for consideration under cl 6.21(4) of LEP 2012. Relevantly, the Respondent does not contend that the matters at cl 6.21(4) give rise to a conclusion that the proposed development does not exhibit design excellence. (Exhibit 6)

105 In determining whether the development exhibits design excellence pursuant to cl 6.21 of LEP 2012, I have had regard to the matters listed at subcl (4)(d). I am satisfied that the land is suitable for the proposed development, a conclusion that is supported by the planning provisions specifically relevant to the Kensington to Kingsford Precinct in both LEP 2012 and DCP 2013. I accept the evidence of Mr Mead and Mr Cadogan in relation to the manner in which the development addresses the remaining factors listed at subcl (4)(d) and find that none weigh against a finding of design excellence.

106   I find that the proposed development exhibits design excellence and that the preconditions at cll 6.11(3) and 6.21(3) of LEP 2012 are met.

9. The Council makes no complaint about these findings.

10. The terms of cl 6.21 are set out later.

11. For reasons she set out at [117] and [118] of her decision, the Commissioner then concluded, as permitted by cl 6.21(6) of the LEP, that it “would be unreasonable or unnecessary in the circumstances of” the Company’s proposed development to require the holding of a “competitive design process” as would otherwise have been mandated by cl 6.21(5) of the LEP.

12. At [117] and [118], the Commissioner said:

118   Consistent with the findings of Dixon C, as she then was, in MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211 at [86] and Walsh C in One Forty William Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1290 at [60], I find that in circumstances where I find that the proposed development exhibits design excellence, it is open to the Court to be satisfied by the operation of subcl (6) that the requirement for competitive design process is unreasonable or unnecessary. At [106], I found that the proposed development exhibits design excellence, I am satisfied that such a characteristic is a circumstance of the development that makes the holding of a competitive design process unnecessary: cl 6.21(6) of LEP 2012. My reasoning follows:

•   I am satisfied that it is open to me to conclude that a finding of design excellence of the development proposed is a circumstance of that development,

•   Applying the reasoning in Wehbe v Pittwater (2007) 156 LGERA 446; [20007] NSWLEC 827 at [42]-[43], I have given weight to the fact that such LEP provisions or requirements are not ends in themselves, but rather a means of achieving environmental or planning objectives:

“42   An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non‑compliance with the standard: [citations omitted]

43   The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).”

• The objective of cl 6.21 of LEP 2012 is “… to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Kensington and Kingsford town centres.”

• I am satisfied, for the reasons detailed earlier in this judgment, that the proposed exhibits design excellence, thus meeting the objective of cl 6.21 of LEP 2012 notwithstanding that the requirement at subcl (5) to hold a competitive design process was varied by the Applicant.

118 For the proceeding [preceding] reasons, consistent with subcl (6) of cl 6.21 of LEP 2012, I am satisfied that the competitive design process required under subcl (5) is unnecessary in the circumstances of the proposed development.

13. The Commissioner also determined that there were no merit impediments to her approving the Company’s proposed development and granting it development consent subject to conditions (conditions which had been agreed to between the parties).

14. At [124], the Commissioner therefore made the following orders:

(1)   The appeal is upheld;

(2)   Development consent is granted to development application DA/489/2020 for demolition of existing structures, construction of a part 5, part 16 storey mixed use development over basement carparking at 273-275 Anzac Parade Kingsford (Lot 1 DP129966 and Lot 1 DP940263), subject to the conditions of consent in Annexure A.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that are thrown away as a result of the amendment of Development Application DA/489/2020 as agreed or assessed.

(4)   Exhibits are returned with the exception of Exhibits A, E and 6 which are to be retained.

15. It is the Commissioner’s dispensing with the requirement to hold a competitive design process that underpins the Council's appeal pursuant to s 56A of the Court Act as can be seen from the grounds that are set out below.

The basis for the Council's appeal

16. The Summons commencing the Council's appeal set out the orders sought in the following terms:

1   Appeal allowed.

2   Orders 2 and 3 made by Dickson C on 23 May 2022 be set aside.

3   Remit the matter to Dickson C for determination in accordance with the decision of the Court on appeal.

4   Costs.

17. The Summons commencing the Council's appeal set out the grounds founding its appeal in the following terms:

1 The Commissioner erred on a question of law in concluding (at [117]-[118]) that a finding that the proposed development exhibited design excellence was sufficient of itself to enable the Court to be satisfied that a competitive design process would be unnecessary in the circumstances of that development, within the meaning of cl 6.21(6) of the RLEP.

2 The Commissioner erred on a question of law in concluding (at [117]) that the fact that the proposed development exhibits design excellence is a circumstance of the development that makes the holding of a competitive design process unnecessary for the purposes of cl 6.21(6), having regard to the proper construction of the words “the circumstances of that development”.

The relevant statutory provisions

18. It is only necessary to set out the provision in the Court Act permitting the appeal and the relevant provisions of the LEP considered by the Commissioner which now provide the basis for the Council's complaints concerning her decision.

19. Section 56A of the Court Act is in the following terms:

56A   Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioner’s

(1)   A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioner’s.

(2)   On the hearing of an appeal under subsection (1), the Court shall—

(a)   remit the matter to the Commissioner or Commissioner’s for determination by the Commissioner or Commissioner’s in accordance with the decision of the Court, or

(b)   make such other order in relation to the appeal as seems fit.

(3)   Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

20. The relevant provision of the LEP is cl 6.21 Design excellence at Kensington and Kingsford town centres. There is no dispute that the provision applies to the Company’s site. The relevant elements of the clause are in the following terms:

6.21   Design excellence at Kensington and Kingsford town centres

(1)   The objective of this clause is to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Kensington and Kingsford town centres.

(2)   This clause applies to development involving the erection of a new building or external alterations to an existing building on land identified as “Y1” or “Y2” on the Alternative Building Heights Map.

(3)   Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence.

(4)   In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a)   whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)   whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c)   whether the development detrimentally impacts on view corridors and landmarks,

(d)   how the development addresses the following matters—

(i)   the suitability of the land for development,

(ii)   existing and proposed uses and use mix,

(iii)   heritage issues and streetscape constraints,

(iv)   the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)   bulk, massing and modulation of buildings,

(vi)   street frontage heights,

(vii)   environmental impacts such as sustainable design, overshadowing, wind and reflectivity,

(viii)   the achievement of the principles of ecologically sustainable development,

(ix)   pedestrian, cycle, vehicular and service access and circulation requirements,

(x)   the impact on, and any proposed improvements to, the public domain,

(xi)   whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity and resource, energy and water efficiency,

(xii)   visual and acoustic privacy and safety and security of the building.

(5)   Development consent must not be granted to the development to which this clause applies unless a competitive design process has been held in relation to the proposed development.

(6)   A competitive design process is not required under subclause (5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances of that development.

(7)   …

(8)   …

(9)   In this clause—

…

competitive design process means an architectural design competition carried out in accordance with procedures approved by the Planning Secretary.

Representation

21. The Council was represented by Mr J Lazarus SC (Mr M Astill, barrister, represented the Council before the Commissioner). The Company was represented by Mr T To, barrister (Mr To also represented the Company before the Commissioner). Each of the advocates before me provided helpful written submissions.

The relevant evidence

22. The evidence before me was entirely documentary. It comprised Volumes 1 and 4 of the Appeal Book (these becoming Exhibits A and B respectively). The Director General's Design excellence Guidelines were tendered becoming Exhibit C and an agreed chronology was tendered as Exhibit D.

23. After the conclusion of the hearing before me, a document entitled “Design excellence Response to Statement of Facts and Contentions under DA/489/2020 prepared by Planning Ingenuity on 22 November 2021” was admitted as Exhibit E in circumstances later set out.

24. The written and oral evidence which was given before the Commissioner which was critical to her findings concerning cl 6.21 of the LEP was given by:

• Mr Jeff Mead, town planner for the Company;

• Mr Alan Cadogan, urban designer for the Company;

• Mr Gerard Turisi, town planner for the Council; and

• Mr Geoff Baker, urban designer for the Council.

25. These four experts produced a Primary Joint Expert Report (being Exhibit 4 before the Commissioner and in evidence before me in Exhibit A, Tab 8) and a Supplementary Joint Expert Report (being Exhibit 8 before the Commissioner and in evidence before me in Exhibit A, Tab 11).

26. These four experts gave concurrent oral evidence before the Commissioner on 3 March 2022, the second day of her hearing. It will later be necessary to refer to, and quote some extracts from, the transcript of that oral evidence.

27. For present purposes, it is appropriate to note that, in paragraph 1.5 of the Primary Joint Expert Report, Mr Mead refers to a document which he had written, a document entitled “Design excellence Response to Statement of Facts and Contentions under DA/489/2020 prepared by Planning Ingenuity on 22 November 2021”. Aspects of this document were the subject of him being questioned by Mr Astill, counsel for the Council, at the hearing before the Commissioner (Transcript 3 March 2022, page 30, line 6 to page 38, line 38).

25. For reasons later addressed, it appeared to me that this document was of potential relevance to my consideration of, and obtaining a proper understanding of, the reasoning in [117] of the Commissioner's decision ‑ the paragraph critical to the Council's complaints in this appeal.

26. The document entitled “Design excellence Response to Statement of Facts and Contentions under DA/489/2020 prepared by Planning Ingenuity on 22 November 2021” had not been tendered in the evidence put before me at the hearing on 16 December 2022. Although four volumes of material had been prepared to form the Appeal Book for this hearing, as earlier noted only Volumes 1 and 4 have been tendered at this hearing. This deficiency in the evidentiary material became apparent to me on 7 March 2023, during the course of my judgment preparation.

27. Following e‑mail contact between my Associate and the legal representatives of the parties, a copy of “Design excellence Response to Statement of Facts and Contentions under DA/489/2020 prepared by Planning Ingenuity on 22 November 2021” was provided to me - with the parties agreeing that it should be regarded as having been tendered and thus becoming Exhibit E.

28. It will later be necessary to turn, in some detail, to what is addressed in Part 2 of Exhibit E.

The submissions before the Commissioner

Introduction

32. Although it will later be necessary to return to further detail of the transcript of the hearing before the Commissioner, it is appropriate to reproduce the following aspects of the transcript from the original merits appeal before the Commissioner on 2, 3 and 4 March 2022.

The oral submissions for the Council

33. Mr Astill drew the Commissioner’s attention to the question of whether a competitive design process should be waived in the present case, proposing that (Transcript, 2 March 2022, page 27, lines 30 to 31):

It’s agreed among all the experts that there hasn’t been a competitive [design] process. The question is whether the circumstances of the case are such that that should be effectively waived.

34. The exchange between Mr Astill and Mr Turisi in relation to design excellence suggested an answer to this question (Transcript, 3 March 2022, page 26, lines 16 to 40):

ASTILL: Mr Torrisi, Mr To asked you a question to the effect if the Court finds the proposal has design excellence, do you agree there was no need to have a design competition, and you said no.

TORRISI: That’s correct.

ASTILL: I think that’s the only question you were asked and then Mr To moved on to Mr Baker. Can I just ask you to explain your reason for answering “No” to Mr To?

TORRISI: Sure. My reasoning and interpretation of the LEP under cl 6.21 does actually require a competition. And the debate is fundamentally what justifies or what triggers the need to do one. Certainly, there is guidelines which the ‑ draft guidelines which the government architects have which actually expands on that, and I, I can also touch on that in a moment.

But also, obviously, the DCP which is in place, which is quite a comprehensive DCP which took a, a lot of consultation and a lot of massing diagrams and a lot of work was done in terms of how to deliver the urban form. Also acknowledges for those key node sites that they are to be done as part of the competition. So, it was always quite clear. And I think over the two town centres there is nine sites in total which have been targeted for that sort of process. So, for my view, clearly, any development on this site, be it part of site, would still require the need to do a design competition.

35. It is clear from the passages from the evidence before the Commissioner, when understood in conjunction with those later reproduced, that the Company’s experts and one of the experts for the Council (Mr Baker) accepted that satisfaction with cl 6.21(3) would provide a sufficient basis to exercise the dispensation discretion vested in the Commissioner pursuant to cl 6.21(6) of the LEP. Mr Turisi, as can be seen from the immediately above passage, disagreed with this proposition.

36. Mr Astill then suggested to Mr Cadogan that a competitive design process does not come within the meaning of “a circumstance of the development” in question. He put to Mr Cadogan that the only circumstances of a development that should render a competitive design process unreasonable or unnecessary, are those physical circumstances that include things like “small buildings or very minor external alterations to existing buildings” (Transcript, 3 March 2022, page 28, lines 36 to 38).

37. Mr Astill submitted that the very nature of a competitive design process is non‑tangible, and that it cannot be considered as “a circumstance of the development” because it is not a physical circumstance. With respect to the terms of cl 6.21(6), he submitted that this would preclude the Company from relying on the fact that a competitive design process was unreasonable or unnecessary “in the circumstances of the development”, the reason being because the competitive design process itself was not a circumstance of the development. The following exchange between Mr Astill and Mr Cadogan advanced this point (Transcript, 3 March 2022, page 29, lines 24 to 31):

ASTILL: … assume just for the purpose of the question that the Court is confined to just the physical nature of the development and its physical and statutory site context. If those were the only thing(s) the Court were permitted to consider as circumstances of the development, you would agree it would not be unreasonable or unnecessary to require a design competition?

CADOGAN: I suppose so, but that’s a very strange limitation, I find.

38. Mr Astill repeated his submission that a finding of design excellence is not sufficient to excuse the obligation for a competitive design process, the mere finding of which would render cl 6.21(5) void of work to do. He proposed that design excellence, much like a competitive design process, is not an “objectively ascertainable” fact or circumstance. Finally, Mr Astill submitted that (Transcript, 4 March 2022, page 13, lines 39 to 44):

It [design excellence] requires an evaluative qualitative judgment to be brought to bear on the development and that’s the whole purpose of a design competition. You can’t obviate a design competition by undertaking the evaluative judgment under subclause (3) to escape the need to do a design competition under (5) in reliance of (6). If I’m right, that’s fatal to this application.

The oral submissions for the Company

39. Mr To submitted that the Commissioner should consider (and make a specific finding) that the proposed development exhibited design excellence. He submitted that making such a finding involved the Court making an evaluative decision based on the evidence (Transcript, 2 March 2022, page 30, lines 43 to 47).

40. Mr To proposed that the Court should also satisfy itself that the jurisdictional requirement pursuant to cl 6.21(5), that is, for a competitive design process to be held, is unreasonable or unnecessary in the circumstances of the development (Transcript, 2 March, page 31, lines 6 to 10).

41. On this point, Mr To submitted (Transcript, 2 March 2022, page 31, lines 13 to 16):

… the Applicant’s position is that the circumstances which are outlined in the evidence ‑ a rigorous alternative design process that indeed commenced even before this clause was introduced into the LEP ‑ is one matter that would lead the Court to the necessary conclusion.

42. In reply to Mr Astill, Mr To rejected the proposition that a finding of design excellence as an exception under cl 6.21(6) would denude cl 6.21(5) of any work to do. He submitted (Transcript, 3 March 2022, page 20, lines 6 to 8):

That’s the suggestion really taken up by Mr Astill. You wouldn’t accept that. It’s not rendered nugatory because of the very things that might sit outside of design excellence that also warrant a finding of unreasonable or unnecessary.

43. Mr To concluded on this point by submitting (Transcript, 3 March 2022, page 20, lines 21 to 25):

There could be any number of those sorts of other exceptions or other reasons which can be a relevant factor to conclude [that it is unreasonable or unnecessary] to hold a design competition. What that demonstrates is that the clause has work to do notwithstanding that design excellence may be another circumstance that justifies the exception.

The submissions on appeal

The written submissions for the Council

44. Mr Lazarus summarised the relevant principles for s 56A appeals under the Land and Environment Court Act 1979 (NSW), submitting, in paragraph 4:

4   The principles relevant to the determination of such appeals were conveniently summarised by Pepper J in Tanious v Georges River Council [2016] NSWLEC 142 at [10] (citations omitted):

(a)   first, the appeal is only concerned with errors or questions of law and not questions of fact;

(b)   second, an overly critical examination of the Commissioner’s decision for relevant error should not be employed. The Commissioner’s reasons for the decision must therefore be read as a whole and considered reasonably. A verbal slip or infelicity of expression does not necessarily warrant drawing an inference of an error of law.

(c)   third, the Commissioner must give adequate reasons for her decision. This means that she must refer to evidence that is important or critical to the determination of the principal or central issues in the case. This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it;

(d)   fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made; and

(e)   fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter.

45. Mr Lazarus submitted that cl 6.21 of the LEP imposed two separate jurisdictional requirements relating to the proposed development the subject of the grant of consent. His written submissions addressed each requirement, saying, at paragraph 2:

2   The first (cl 6.21(3)) related to whether the consent authority considered that the proposed development exhibited design excellence. The second (cl 6.21(5)) concerned whether a competitive design process had been held in relation to the proposed development, a requirement which could only be “waived” if the consent authority was satisfied that such a process would be “unnecessary or unreasonable in the circumstances of that development” (cl 6.21(6)).

1. 13 With respect to the competitive design process requirement, Mr Lazarus proposed that the Commissioner dealt with cl 6.21(6) incorrectly. In his written submissions, at paragraph 3, Mr Lazarus contended that the Commissioner erred in law on two bases by concluding:

3(a) … that a finding that the proposed development exhibited design excellence was sufficient of itself to enable the Court to be satisfied that a competitive design process would be unnecessary in the circumstances of that development, within the meaning of cl 6.21(6) of the RLEP; and

3(b) … that the fact that the proposed development exhibits design excellence is a circumstance of the development that makes the holding of a competitive design process unnecessary for the purposes of cl 6.21(c), having regard to the proper construction of the words “the circumstances of that development”.

46. Although Mr Lazarus did not cavil with the finding made by the Commissioner that the proposed development exhibits design excellence for the purposes of cl 6.21(3) (and for the purposes of cl 6.11(3) - another design excellence provision engaged by the development application), he submitted that such a finding was not sufficient to conclude that the competitive design process was, in the circumstances of the proposed development, unreasonable or unnecessary. His written submissions said, at paragraph 9:

9 With respect, the Commissioner was incorrect to hold at [117] that a finding that the proposed development exhibits design excellence entitled her (without more) to conclude that a design competition was unnecessary. She has erred by conflating the two separate jurisdictional requirements in cl 6.21(3) and (5).

47. Mr Lazarus submitted that the jurisdictional requirement imposed by cl 6.21(5) is to be construed as separate from, and in addition to, the jurisdictional requirement imposed by cl 6.21(3). This, he submitted, gave effect to the purpose of the provisions to ensure that a design proposal the subject of a development application is not merely “excellent”, but also the product of a competitive design process pursuant to the relevant guidelines referred to in cl 6.21(9) ‑ these being Exhibit C.

48. Mr Lazarus’ written submissions further addressed the finding by the Commissioner that design excellence alone was sufficient to enable the satisfaction that a competitive design process was unreasonable. He said, at paragraph 12:

12 To find that design excellence is sufficient in and of itself to enable the requirement for a competitive design process to be waived would denude cl 6.21(5) of any work to do, which is a construction of the provision that the Court would not readily embrace. It is a fundamental precept of statutory construction that all words of an enactment must prima facie be given some meaning and effect: Commonwealth v Baume (1905) 2 CLR 405 at 414; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 104 CLR 355 at [71].

49. Mr Lazarus then turned to address the relevance of cl 6.21(7) to the construction of the two jurisdictional requirements, saying, at paragraph 16:

16 Lastly, the separateness of the two jurisdictional requirements in cl 6.21(3) and (5) is emphasised by the bonus height provision in cl 6.21(7). Clause 6.21(7) allows additional height of up to 6m on the “Y1” or “Y2” marked land in the event that the design is the winner of a competitive process and the consent authority is satisfied that it exhibits design excellence.

50. The second error in law proposed by Mr Lazarus concerned cl 6.21(6), specifically, the construction of the words “in the circumstances of that development”. In his written submissions, Mr Lazarus turned to address what he proposed was the proper construction of these words, submitting, in paragraph 19:

19   On its proper construction, the phrase “[in] the circumstances of that development” is directed to objectively ascertainable matters such as the physical nature of the development including its size and scope, the site and its context and the relevant planning controls.

51. Continuing from the above passage, Mr Lazarus suggested, at paragraph 17:

17 That is, cl 6.21(6) asks: what is it about this development that would obviate the need for what would otherwise be a mandatory requirement for the holding of a design competition as an anterior step in the progression of the design process? A determination of whether the proposed development exhibits design excellence requires, on the other hand, an evaluative qualitative judgment to be brought to bear in relation to the assessment of the proposed development, and at a much later stage of the overall process.

The oral submissions for the Council

52. Mr Lazarus took me through elements of Exhibit C, the Department of Planning’s Design Competition Guidelines. Mr Lazarus commenced his submissions on this point saying (Transcript 16 December 2022, page 4, lines 26 to 45):

… Can I take your Honour to exhibit C?  It's an important document, in our submission, because it's expressly called up by the clause. It tells one, quite specifically, that the purpose of an architectural design competition or competitive design process is not merely design excellence. I'll explain that in a moment. Under the heading "Introduction", if I can take your Honour to the third paragraph:

"An architectural design competition has the potential to achieve design excellence and encourage innovation without delaying the development application process. The key to success is to commence pre‑planning at an early stage in the development process. The design competition should be undertaken prior to the lodgement of a formal development application."

That's important because when one looks at the provision that is 6.21, in a temporal sense, one needs to understand that the dispensation provision in subcl (6) is intended to be exercised, we say, at a much earlier stage in the process rather than at the stage of determining the development application and that is because the design competition is meant to happen before the development application is lodged. …

53. I questioned Mr Lazarus as to whether these matters should have been pressed by the Council with the Company prior to accepting the development application and with him responding that there was no basis upon which it could have been rejected. Mr Lazarus, in addressing the fact that the Council had raised a specific contention in the proceedings before the Commissioner concerning compliance with the guidelines submitted (Transcript 16 December 2022, page 5, lines 13 to 30):

… Just taking your Honour ‑ still on p 1 ‑ to the purpose of the design competition and specifically the right‑hand column, "Objectives of the design competition", design competition objectives include ‑ and dot‑point 1 is important ‑ "To achieve a diversity of architectural response"; second point, "To achieve a high standard of architectural excellence", that's the design excellence aspect of it; third dot‑point, "To encourage flexibility within the urban design controls to allow for newer or unexpected solutions", that's also important; fourth dot‑point, "To provide incentive through greater FSR and/or height"; and fifth dot‑point, "To encourage a sense of civic pride."

All of those things are important because it's said against us that we rely, in our submissions, upon some unexpressed objective or purpose of 6.21 being something that extends beyond the attainment of design excellence. But what this mandatory set of guidelines incorporated into cl 6.21 does is it tells you that the purpose of a design competition extends beyond architectural excellence and specifically encouraging a diversity of architectural response and allowing for newer or unexpected solutions.

54. Mr Lazarus then took me through more of the detail of relevant matters (in his submission) set out in those guidelines. It is unnecessary here to repeat them.

55. Mr Lazarus next took me to the Commissioner’s decision as addressing the specific terms of cl 6.21 of the LEP. In this context, Mr Lazarus confirmed that the Council did not challenge the Commissioner's finding that the Company's proposed development exhibited design excellence for the purposes of cl 6.21(3) of the LEP.

56. Mr Lazarus next took me to [117] of the Commissioner's judgment, a paragraph earlier set out.

57. He noted, with respect to this paragraph of the Commissioner's judgment (Transcript 16 December 2022, page 7, lines 25 and 26):

She doesn't (say) “unreasonable”, she just says “unnecessary”. Then she explains her reasoning process in the following dot‑points.

58. Mr Lazarus then repeated the first of the dot‑points in [117] of the Commissioner's judgment, noting that this dot‑point was the basis for the Council's Ground 2 in its Summons earlier set out.

59. Mr Lazarus then took me through, briefly, the remaining elements of [117] of the Commissioner’s decision, followed by reading me [118] (also earlier set out).

60. In this context, for reasons to which I will return, his reading of the final dot‑point in [117] was in the following terms (Transcript 16 December 2022, page 7, lines 39 to 44):

Then the final dot‑point, "I am satisfied for the reasons detailed earlier in this judgment that the"‑ that should be "proposal" or "proposed" ‑ "development exhibits design excellence, thus meeting the objective of cl 6.21 of the LEP, notwithstanding that the requirement at subcl (5) to hold a competitive design process was varied by the applicant."

61. He then submitted, with respect to the entirety of the Commissioner's reasoning in these two paragraphs that (Transcript 16 December 2022, page 7, line 49 to page 8, line 8):

Taking all of the reasoning at 117 to 118 together; it's plainly obvious, we say, that the sole basis upon which the Commissioner concluded that cl 6.21(6) was satisfied was because of her conclusion about 6.21(3). There is no other basis provided; that is ‑ what she says, paraphrasing ‑ I've already found that the proposal exhibits design excellence; a finding of design excellence is a circumstance of that development within in the meaning of 6.21(6), therefore, for that reason alone, I find that I should exercise my power of dispensation under cl 6.21(6). The two grounds which are, plainly enough, interrelated are that; (1) whether a finding of design excellence is sufficient and (2) whether it's relevant at all to the exercise of the power under 6.21(6).

62. In his written submissions, Mr Lazarus said, in paragraph 10:

10 Clause 6.21(5) imposes a jurisdictional requirement which is separate from, and in addition to, the jurisdictional requirement that the proposed development exhibit design excellent in cl 6.21(3). That is, it is not enough that a proposal exhibit design excellence, but in the case of development to which the clause applies (ie a key, or node, site), it is a mandatory requirement (unless waived) that a competitive design process be held. The self-evidence purpose of sucha provision is to provide an additional layer of quality assurance that ensures that the design that is ultimately applied for is not merely “excellent” but is also the product of a competitive design process, and that the design that is submitted for approval is the best design among a selection of at least three competing architectural firms, chosen by an independent competition jury, as required by the relevant Guidelines referred to in cl 6.21(9).

63. With respect to the above paragraph, Mr Lazarus said, in his oral submissions (Transcript 16 December 2022, page 8, lines 13 to 23):

… If your Honour would just notionally add to the end of that paragraph the references in the guidelines, exhibit C, that I took your Honour to; those being the provisions relating to, at least, three architectural firms that need to be engaged, the selection of an independent jury, the process for the determination of the winning design and then the post‑competitive process that is mandated by the guidelines. They are all critical matters that underlie the importance of the competitive design process when one is dealing with a development application where that requirement is engaged, as it is in this case, under 6 21(5). …

64. Mr Lazarus addressed paragraphs 11, 12 and 13 of his written submissions. It is sufficient, for present purposes, to set out the terms of his paragraphs 11 and 12:

11 The default position under cl 6.21(5) is that a competitive design process must be held in relation to development to which the clause applies, otherwise consent may not be granted. That reflects the importance that the RLEP attaches to development on the key, or node, sites identified as “y1” or “Y2” on the Alternative Building Heights Map. The onus lies on an applicant to persuade the consent authority that a competitive design process is not required because such a process would be unreasonable or unnecessary in the circumstances of the development. The satisfaction of cl 6.21(6) by a finding of design excellence alone would deny to those key sites the real possibility that a better outcome would be achieved if the ultimate design has been through the rigours of a competitive design process.

65. Paragraph 12 of Mr Lazarus's written submissions was in the following terms:

12 To find that design excellence is sufficient in and of itself to enable the requirement for a competitive design process to be waived would denude cl 6.21(5) of any work to do, which is a construction of the provision that the Court would not readily embrace. It is a fundamental precept of statutory construction that all words of an enactment must prima facie be given some meaning and effect: Commonwealth v Baume (1905) 2 CLR 405 AT 414; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].

66. With respect to the above paragraph, he submitted (Transcript 16 December 2022, page 8, lines 27 to 34):

… 12 is, of course, of critical importance because your Honour is well aware of the principle of construction that under Project Blue Sky all words of the statute are to be given meaning. To find, as the Commissioner has done, that a finding of satisfaction of 6.21(3) is sufficient in and of itself to satisfy 6.21(6) simply gives 6.21(5) and (6) no work to do at all because if you make a finding of design excellence and that is sufficient, that's the end of it, you don't need to worry about a competitive design process. That's quite critical, we say. …

67. He then turned to the terms of his written paragraph 13, a paragraph saying:

13 Another important indicator of regulatory intention relates to the temporal dimension associated with cl 6.21(5) and (6). Although those provisions do not expressly say when a decision is to be made as to whether a competitive design process is required or not, practicality dictates that it must be relatively early in the DA process (and indeed most likely before lodgement of the DA), rather than at the end when the DA is being assessed, including by reference to cl 6.21(3). The design competition (if one is to be ehld) informs the development for which consent is ultimately applied for, in tha the development for which consent is sought must be the same or substantially the same as that the subject of the competitive design process: cl 6.21(5); Toga Penrith at [132]. That consideration also tends to suggest that a conclusion of design excellence (formed when determining the DA) ought not be determinative of whether a competition is required or not.

68. The transcript then records an exchange which I had with Mr Lazarus concerning paragraph 13 (Transcript 16 December 2022, page 8, line 36 to page 9, line 23):

Then at para 13 is the temporal submission to which I made reference earlier and that is that because the competition is intended to be conducted prior to the DA stage and because the ultimate design has to reflect; that is, the ultimate design which is to be determined, and be very close to the winning design, the point of dispensation has to be met. It's contemplated that it be met at a much earlier stage, not at the stage of determining the DA.

HIS HONOUR: That's not a matter within the control of the Commissioner, is it?

LAZARUS: No, it's not.

HIS HONOUR: Your client could have said, at any relevant stage, pursuant to the information‑seeking power in the 2000 regulation, please provide us with information (a) as to how what you propose exhibits design excellence and (b) explain to us why you haven't held a design competition.

LAZARUS: I can't assist your Honour as to whether there was any such correspondence.

HIS HONOUR: The point that I was getting to was because there was a development application and it was accepted by your client and therefore became lodged an had to be determined, your client can't complain that the Commissioner was exercising the statutory function that she was required to undertake. Whether or she did it correctly or not is a different issue. But once it's in and once the appeal is in, she is seized with a very limited range of jurisdiction.

LAZARUS: I understand that, your Honour, and perhaps I've been misunderstood. I'm advancing this proposition by way of support of the construction that we put forward that a finding of design excellence is not intended ‑ quite a separate process is contemplated ‑ to be determinative of whether a design competition is required or not.

HIS HONOUR: I understand that.

LAZARUS: Because under the statutory scheme, it's intended that all of this happened at anterior stage. That's the only point, your Honour.

The written submissions for the Company

69. Mr To rejected the proposition advanced by Mr Lazarus that the Commissioner had conflated the jurisdictional requirements of cll 6.21(3) and (5). In his written submissions, Mr To said, at paragraph 6:

6   There was no such error. It proceeds on an incorrect characterisation of the judgment.

70. Mr To submitted that Mr Lazarus’ characterisation of the Commissioner’s reasoning in her judgment was incorrect because it failed to recognise that the same factual circumstance that satisfied one precondition, cl 6.21(3), satisfied the exception which relieved the necessity for compliance with the other precondition in cl 6.21(5). Mr To’s written submissions said, at paragraphs 10 and 12:

10   The finding of design excellence was a circumstance of the development that the Commissioner also found to mean that it was unnecessary to hold a design competition. This second finding, one of satisfaction, disengaged the requirement to hold a design competition, by reason of cl 6.21(6).

11   …

12   … the Commissioner well understand that there were two jurisdictional requirements. They were not conflated. There was no error [as] asserted.

71. Mr To also rejected the proposition advanced by Mr Lazarus that cl 6.21(5) would have no work to do if design excellence was to be considered sufficient in its own terms. Mr To advanced two reasons in his written submissions that sought to reject such a proposition, saying, at paragraph 23:

23 First, the provision always has work to do unless it is disengaged by the consent authority reaching the state of satisfaction required by cl 6.21(6). Second, this argument involves a false premise that a finding of design excellence necessarily compels the satisfaction in cl 6.21(6). It does not. It may be important and indeed determinative in some cases, but it cannot be said to displace the need for the formation of the state of satisfaction. Otherwise, cl 6.21(6) could simply have been drafted to say, “unless the consent authority is satisfied, the development exhibits design excellence”, or similar words to that effect.

Consideration

Introduction

72. It is important to note that, in the context of an appeal such as this, my consideration of the Commissioner’s decision is not one which involves me trawling through it with a fine‑tooth comb (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368) or with an eye finely attuned to the finding of error (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-292; Bellenger v Randwick City Council [2017] NSWLEC 1 at [3]).

73. Here, the reasons provided by the Commissioner must be sufficient to enable the parties to the proceedings to understand her process of analysis of, and conclusions drawn from, the evidence before the Commissioner and the submissions made to her concerning that evidence. The decision must be sufficient to enable, as well, a casual reader to obtain an understanding of the proceedings and its outcome, but the measure of sufficiency of the decision must be viewed through the lens brought to bear by the parties to the proceedings (particularly from the perspective of the unsuccessful party).

74. It is in that context, that I turn to consider the two separate complaints made by the Council concerning [117] of the Commissioner’s decision, that which set out the basis upon which she concluded that it was appropriate to exercise the discretion given to her by cl 6.21(6) of the LEP to dispense with the need for a competitive design process which would otherwise have been mandated by cl 6.21(5) of the LEP.

The relevant element of [117] of the Commissioner’s decision

75. I have earlier set out the terms of [117] of the Commissioner's decision. It is appropriate to note that, in reaching her conclusion that a competitive design process should be dispensed with, the Commissioner did not simply say, in this paragraph of her decision, that her satisfaction that the Company's amended proposal exhibited design excellence was the sole basis upon which the exemption from cl 6.21(5) was appropriate. In the fourth point in [117], the Commissioner wrote (emphasis added by me):

I am satisfied, for the reasons detailed earlier in this judgment, that the proposed exhibits design excellence, thus meeting the objective of cl 6.21 of LEP 2012 notwithstanding that the requirement at subcl (5) to hold a competitive design process was varied by the Applicant.

76. It is, therefore, necessary to consider in some detail what is to be understood by those emphasised words in the context of the two complaints which the Council makes in this appeal.

77. However, resolution of this appeal is comparatively simple. It can be addressed, on a first principles basis, by an examination of the steps mandated by the structure of cl 6.21 of the LEP and considering whether (and, if so, whether sufficient) consideration was given to the mandated requirements of the clause by the Commissioner.

78. It is here first appropriate to set out the relevant elements of the opening submissions before the Commissioner.

79. Mr Astill said, in his opening submissions relevant to how the Council proposed cl 6.21(6) of the LEP should be approached (Transcript 2 March 2022, page 20, line 16 to page 21, line 12):

Subclause (6) provides that that process is not required if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances of that development. "That development" includes any external alteration so a case could well be envisaged where a development proposed some minor external alteration to a building. It would be clearly unreasonable or unnecessary for a design competition to be held in respect of that kind of development which would otherwise be caught by the clause. But the council's case is there is nothing about the circumstances of this development that would obviate the need for a design competition. It's a key site. It's identified as such in the DCP, to which I'll come shortly. It's a very substantial development obviously. The circumstances of it if one is constrained to how important it is as identified in the instruments and its scale and size, we say those are the circumstances of the development that need to be considered as to whether a design competition is necessary.

The applicant - as we understand the applicant's argument here they say, We achieve design excellence anyway because we've done a lot of review and we've had all sorts of other processes. Our answer to that is twofold. One is, the clause does not excuse a design competition process if for example you can otherwise achieve design excellence. It simply doesn’t say that. It also doesn't say you don't have to have a design competition if you introduce some other process like review. We say a review, a peer review and all sorts of things that the applicant relies on are completely irrelevant. I'll cross-examine my friend's experts and that issue or the difference between us will become clear.

There are two parts to subcl (6). One is a question of legal construction in the sense of what do the words "circumstances of that development" mean in the clause. Do they mean, as we say, the objectively ascertainable circumstances of the development that is proposed or does it mean some other thing that the applicant relies on, some other process they rely on? We say the process is irrelevant. I'm starting to repeat myself so I'll stop. so that's the legal question of what are the circumstances that you can consider. The second is of course an opinion. Having regard to those circumstances, is it unreasonable or unnecessary?

The second question possibly flows from the first. It certainly flows from the first if we're right but we say even if we're wrong and the applicant's contention about what the circumstances are is right, we can look at all those processes, we still say it would not be unreasonable or unnecessary to require a design competition because - and in a way I'm telegraphing my punches - a design competition is an entirely different process to a peer review of an architect's design because in a competitive process you have independent architects not knowing what each of them is doing coming up with different schemes and then that goes to an independent jury. What the applicant has done is had an architect design a thing and then under the control of the applicant get some other people to look at it, so that’s our case on that point.

80. In his opening submissions, Mr To, said, in response to the above submissions from Mr Astill (Transcript 2 March 2022, page 31, lines 7 to 18):

TO: The second key matter is the requirement for a competitive design process that ordinarily arises under cl 6.21(5) and, linked to that, whether the Court can be satisfied, as we say it will be, that such a process is unreasonable or unnecessary in the circumstances of the development. Mr Astill identified a question of what's the ambit of the consideration in subcl (6) as well as the decision to be made. It will be no surprise to my learned friend or the Court that the applicant's position is that the circumstances which are outlined in the evidence - a rigorous alternative design process that indeed commenced even before this clause was introduced into the LEP - is one matter that would lead the Court to the necessary conclusion. So too leading to the same conclusion would be a finding that the development exhibits design excellence. There is a little bit of a debate as I appreciate it about the interpretation of the clause.

The first of the Council’s complaints ‑ Ground 1

Introduction

81. First, it is to be observed that the making of a positive finding of satisfaction pursuant to cl 6.21(3) has, as its necessary antecedent steps, consideration of, and, to the extent relevant, obtaining the necessary degree of satisfaction concerning, each of the matters set out in cl 6.21(4).

82. As the Commissioner explained in [103] of her decision, she examined the relevant mandated matters in cl 6.21(4) in two stages.

83. The first stage arose during the course of her consideration of matters mandated by cl 6.11(4) of the LEP because those matters were common with elements of cl 6.21(4). At [87] to [102], the Commissioner dealt with the relevant matters in cl 6.11(4) and explained comprehensively why she reached the necessary state of satisfaction with respect to those matters. For the purposes of cl 6.21(4), she recorded, at [103], her carry forward of those conclusions for this second purpose.

84. At [104], the Commissioner said:

I further note that in his evidence Mr Baker raises no specific concerns in regard to the additional matter for consideration under cl 6.21(4) of LEP 2012.

85. It is to be noted that Mr Baker was the urban design expert giving evidence for the Council. In the same paragraph, she also recorded:

Relevantly, the Respondent does not contend that the matters at cl 6.21(4) give rise to a conclusion that the proposed development does not exhibit design excellence. (Exhibit 6)

86. At [105] and [106] of her decision, the Commissioner then addressed the remaining relevant matters arising for consideration in cl 6.21(4). She said:

105 In determining whether the development exhibits design excellence pursuant to cl 6.21 of LEP 2012, I have had regard to the matters listed at subcl (4)(d). I am satisfied that the land is suitable for the proposed development, a conclusion that is supported by the planning provisions specifically relevant to the Kensington to Kingsford Precinct in both LEP 2012 and DCP 2013. I accept the evidence of Mr Mead and Mr Cadogan in relation to the manner in which the development addresses the remaining factors listed at subcl (4)(d) and find that none weigh against a finding of design excellence.

106   I find that the proposed development exhibits design excellence and that the preconditions at cll 6.11(3) and 6.21(3) of LEP 2012 are met.

87. This sufficiently explained, in light of Mr Baker’s evidence, the Commissioner’s reasons for reaching a conclusion of satisfaction on those additional relevant matters.

88. It is to be noted that, for the purposes of this appeal, the Council makes no complaint arising from the above process, nor from the conclusion which the Commissioner reached having undertaken that process.

89. Although the Council accepts that the Commissioner reached an appropriate conclusion as to satisfaction of cl 6.21(3), as can be seen from the terms of the complaints in the Council’s Summons initiating this appeal, the Council complains that the Commissioner inappropriately concluded that, in the particular circumstances of the Company's proposed development, the Company was to be afforded the benefit of a finding pursuant to cl 6.21(6) of the LEP and that, as a consequence, the requirement for the conducting of a competitive design process (a process which would otherwise be mandated by virtue of cl 6.21(5)) was not necessary.

90. It is to be noted that the term “competitive design process” is defined in cl 6.21(9) as:

competitive design process means an architectural design competition carried out in accordance with procedures approved by the Planning Secretary.

91. For present purposes, it is appropriate to reproduce the terms of the element in cl 6.21(6), which provides a discretionary basis upon which the Commissioner could (as she did) determine that a competitive design process might be dispensed with. The terms of this element of cl 6.21(6) are:

(6)   … if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances of that development.

Further consideration of the oral evidence before the Commissioner

92. I have earlier set out some of the relevant portions of the transcript of the evidence and submissions made to the Commissioner. It is now appropriate to turn to further elements of how the proceedings were conducted before the Commissioner as part of my consideration of whether or not Ground 1 in the Council's Summons is made out.

93. I have earlier noted that the town planning and urban design experts gave concurrent oral evidence before the Commissioner. One of the matters addressed in the questioning of those experts was whether satisfaction of cl 6.21(3) would, in and of itself alone, constitute a proper basis for triggering cl 6.21(6) to exempt a proposed development from the necessity to go through a competitive design process. Mr Turisi, the Council's town planning expert, expressed the opinion that it was not. Mr Baker, the Council's urban design expert, was of the opinion that such a conclusion would be appropriate to draw (Transcript 3 March 2022, page 8, lines 2 to 24):

TO: … Mr Torrisi, if the Court determines that the proposal exhibits design excellence, that is a matter that would make it unnecessary or unreasonable for a design competition to have been held. That's a proposition with which you agree, I take it?

WITNESS TORRISI: No, I don’t.

TO: Very well. Mr Baker, same question and same proposition. Do you agree that if the Court decides that the proposal exhibits design excellence it is a matter that would make it unnecessary or unreasonable for a design competition to have been held? You're on mute, Mr Baker.

WITNESS BAKER: Thank you. I - there's - in terms of the technical matters of how the DCP is interpreted and the LEP is interpreted, I, I can't speak to that. But my position remains that a design competition shouldn't be help for this development.

TO: Mr Baker, can you just listen to what I've asked. If the Court determines that the proposal exhibits design excellence, that is a matter that makes it unnecessary or unreasonable for a design competition to be held?

WITNESS BAKER: That's my understanding of the controls. I hope I understand them correctly.

94. In the course of his questioning of Mr Turisi, Mr Astill asked him about the above response given by him to Mr To’s question. The relevant passage is in the following terms (Transcript 3 March 2022, page 26, lines 16 to 40):

ASTILL: Sorry, I'll start again. Mr Torrisi, Mr To asked you a question to the effect if the Court finds the proposal has design excellence, do you agree there was no need to have a design competition, and you said no.

WITNESS TORRISI: That's correct.

ASTILL: I think that's the only question you were asked and then Mr To moved on to Mr Baker. Can I just ask you to explain your reason for answering "No" to Mr To?

WITNESS TORRISI: Sure. My reasoning and interpretation of the LEP under clause 6.21 does actually require a competition. And the debate is fundamentally what justifies or what triggers the need to do one. Certainly there is guidelines which the - draft guidelines which the government architects have which actually expands on that, and I, I can also touch on that in a moment.

But also, obviously, the DCP which is in place, which is quite a comprehensive DCP which took a, a lot of consultation and a lot of massing diagrams and a lot of work was done in terms of how to deliver the urban form. Also acknowledges for those key node sites that they are to be done as part of the competition. So it was always quite clear. And I think over the two town centres there's nine sites in total which have been targeted for that sort of process. So for my view, clearly, any development on this site, be it part of site, would still require the need to do a design competition.

The Company’s “Alternative Design Process” for its proposed design

95. I have earlier set out how the document written by Mr Mead entitled “Design excellence Response to Statement of Facts and Contentions under DA/489/2020 prepared by Planning Ingenuity on 22 November 2021” came to become Exhibit E, despite not being part of the material tendered in Exhibits A and B at the hearing on 16 December 2022. Exhibit E is a document of 18 pages. Of these, pages 13 onward set out, under the heading “Alternative Design Process”, the process by which the Company had others (not associated with those who prepared the design of the Company's proposed development) undertake a review of, and provide comments on, that design.

96. In the following paragraphs, I set out a brief summary of the ~five pages describing this “Alternative Design Process” and its outcomes. In addition, because this document plays a critical role in my determination as to the adequacy of the Commissioner's reasoning in [117], the entirety of the peer review section of Exhibit E is reproduced as Annexure A to this decision.

97. The “Alternative Design Process” portion of Exhibit E explained that engagement of Turner Studios to design the proposal had begun before the requirement for a design competition was formally introduced into the LEP in August 2020 (and, relevantly, the K2K DCP in November of that year). Although the Company’s development application was lodged in September 2020, the proposal had previously undergone critical urban design and architectural review to ensure that it exhibited design excellence through its own rigorous “alternative design process”. By adopting this alternative approach, the Company contends that the proposal has been subject to critical refinement and evaluative processes which are more rigorous than, and superior to, a traditional competitive design process.

98. The specific processes that were undertaken began with an initial design review meeting that was convened by Planning Ingenuity. This meeting was held before an urban and architectural design panel consisting of expert representatives from Turner Studios, Carter Williamson Architects and Hatch and Roberts‑Day. Having subsequently received written feedback on the original design, as prepared and issued by Carter Williamson Architects, and Hatch and Roberts-Day (referred to as the “experts”), Turner Studios prepared a written and architectural response that was issued to the experts prior to the second design review meeting.

99. The second design review meeting facilitated an opportunity for the experts to provide a collaborated and organised response to the amended architectural design and response package that was presented by Turner Studios.

100. Turner Studios then prepared a second and finalised architectural response to the critical analysis provided by the experts in the course of the second design review meeting. These finalised architectural plans were issued to the experts to permit and expedite the preparation of their respective Design excellence Reports.

101. A Design excellence Report was then prepared by the experts in collaboration, the contents of which included consideration of applicable site constraints and the desired future character of the locality of the proposed development. The Design excellence Report also documented the numerous iterations to the design and an explanation as to how the staggered expert feedback assisted in ensuring the design proposal exhibits design excellence. Examples of such iterations included, but were not limited to, the addition of a setback of one metre provided to Anzac Parade to enable a 2.5‑metre street setback, the provision for an AWSC system for future adaptation of the waste system, and the reduction of the height of the northern portion of the site from 15 storeys to 11 storeys.

102. It is sufficient, for present purposes, to set out Mr Mead’s conclusion concerning this “Alternative Design Process” and its outcomes. They were recorded on the final page of Exhibit E in the following terms:

Conclusion

The proposed development is of a high standard of architectural design, and the materials and detailing are appropriate to the building type and location. Turner is a reputable and award-winning confirm architectural firm with demonstrated experience in designing high quality buildings exhibiting design excellence. As detailed above, the consent authority can be satisfied that the proposal achieves design excellence pursuant to clause 6.21 (3) of RLEP 2012 and the relevant provisions of the K2K DCP. The proposal has undergone rigorous design review through the ·alternative design process· which has purposefully been undertaken to ensure it is consistent with (but more extensive than) the methods applied to a standard architectural design competition. Given the extent and depth of processes which have been undertaken prior to and post lodgement, the development satisfies clause 6.21 (6) and a competitive design process is considered to be unreasonable and unnecessary in the circumstances. Furthermore, it is evident through the architectural design and supporting documentation that the requirements under Clause 6.21 (4) are also satisfied. As such. the proposal is considered to achieve design excellence that satisfies the provisions of both the RLEP 2012 and K2K DCP.

103. At this point, it is appropriate to note that the written submissions by both counsel in the appeal before me, and in their oral submissions as disclosed in the transcript of the hearing before me, made no express reference to Exhibit E, let alone to any detail of its contents.

Conclusion concerning the Council’s first complaint

104. Before turning to consider the basis upon which the Commissioner concluded that the Company should be afforded the benefit of cl 6.21(6) and thus avoid the necessity for a competitive design process, two specific matters are to be noted.

105. First, a matter specific to this appeal, the Commissioner did not found her conclusion that the Company should be given the benefit of cl 6.21(6) simply and wholly on the basis that she had concluded that cl 6.21(3) had been satisfied, and that the demonstration of design excellence was, in and of itself, sufficient to provide a basis to make a discretionary determination to avoid the necessity for a competitive design process. In this context, it will be necessary to examine, further, the terms of [117] of the Commissioner’s decision.

106. Second, the decision‑making process required by cl 6.21(6) is a classically evaluative one whereby the Commissioner was required to consider and weigh relevant factors and, having done so, determine whether or not she should conclude, on the basis of that evaluation, that she should exercise the discretion vested in her to dispense with the requirement for a competitive design process.

107. For the reasons outlined in the first of the points noted immediately above, it is clear that the Commissioner needed to go beyond mere satisfaction with all the relevant factors set out in cl 6.21(4) ‑ although the structure of the clause does not mandate that the satisfaction of those factors, and the support for a finding pursuant to cl 6.21(3), is to be excluded from consideration for the purpose of her cl 6.21(6) evaluation, that finding can only be but one factor arising for discretionary consideration.

108. The Commissioner set out, at [110] to [116], the matters arising from the evidence and submissions which she considered before turning her attention to the conclusion she was to draw from them. She said:

110   Mr Astill, for the Respondent, argues that the Court would conclude that the requirement for a competitive design process is not unreasonable or unnecessary in the circumstances of the development on the following grounds:

•   That at least three relevant circumstances of the development support the requirement for a competitive design process being reasonable and necessary, those being that: firstly, the site is nominated as a key, or node, site in the planning instruments; secondly, that the development proposed is of a substantial scale; and finally, that the Applicant has not established that there are specific circumstances that give rise to an exception to the requirement.

•   The clause does not exclude the need for a competitive design process merely by the achievement or a finding of design excellence under either cl 6.11 or 6.21 of LEP 2012.

• The competitive design process envisaged by cl 6.21(5) of LEP 2012 is not equivalent to the review process that has been undertaken by the Applicant. It is of a different character. Namely, the review process was not conducted independently of the Applicant, nor did it seek the concurrent preparation of independent designs from architects for the subject site. Rather, the Applicant’s process focussed on critique and refinement of a specific design.

111 Further, the Respondent argues that the Court should take a narrow view of the term ‘circumstances of the development’ in cl 6.21(6) of LEP 2012. Namely, that the relevant circumstances are only those that are the physical and statutory planning context of the site. Mr Astill submits that a finding that a development exhibits design excellence cannot properly be seen as a circumstance of the development.

112 In the alternative, the Applicant argues that the Court would be satisfied that the precondition at cl 6.21(5) of LEP 2012 is met on principally two grounds. The Applicant’s submissions summarise these grounds as firstly, “It is unreasonable or unnecessary to hold such a competitive process because the alternative process has, as a process, subjected the development design to a level of scrutiny at least the same as, and greater, than a competition” and secondly because the design does exhibit design excellence. (Applicant’s written submissions 4 March 2022)

113   In relation to the first factor, Mr To argues that the peer review process adopted by the Applicant allows the input of additional experts into the design process and challenges the architectural approach to the site in a manner that does not occur in a design competition. Mr To concludes on this basis that the Applicant’s process can been seen as more rigorous.

114   Mr To submits that the following factors also support a conclusion that a design competition is unnecessary or unnecessary. He states:

“32.1   The design of the development started before amendments to RLEP in late 2020 introduced design competition requirements.

32.2   The design of the proposal on the site was developed, iteratively, both by the project architect and upon critical review by two independent architects.

32.3   The design was then again independently critiqued by three architects comprising the Randwick Design excellence Panel.”

(Applicant’s written submissions 4 March 2022)

115   In reply to the Respondent’s argument that a design competition may have generated different designs, Mr To relies on Mr Mead’s oral evidence that such an outcome would be unlikely given the prescriptive nature of the design brief which would emphasise and incorporate the planning and build form envelope controls of DCP 2013. He notes that Mr Mead concluded that the likely differences between entries would be in architectural expression and internal layout, not overall built form. (Applicant’s written submissions 4 March 2022)

116 Mr To concludes that on Mr Mead and Mr Cadogan’s evidence the Court would find that it is unreasonable or unnecessary to hold a design competition, meeting the requirement of cl 6.21(6) of LEP 2012.

109. It is next necessary to turn to the basis set out in [117] and [118] of the Commissioner’s decision as founding her conclusion that it was appropriate to dispense with the need for a competitive design process. This paragraph of the Commissioner’s decision has earlier been set out but is appropriate to be repeated, because of its contextual relevance, in my analysis of how the Commissioner exercised her cl 6.21(6) discretion. These paragraphs from her decision are in the following terms (emphasis again added):

117   Consistent with the findings of Dixon C, as she then was, in MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211 at [86] and Walsh C in One Forty William Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1290 at [60], I find that in circumstances where I find that the proposed development exhibits design excellence, it is open to the Court to be satisfied by the operation of subcl (6) that the requirement for competitive design process is unreasonable or unnecessary. At [106], I found that the proposed development exhibits design excellence, I am satisfied that such a characteristic is a circumstance of the development that makes the holding of a competitive design process unnecessary: cl 6.21(6) of LEP 2012. My reasoning follows:

•   I am satisfied that it is open to me to conclude that a finding of design excellence of the development proposed is a circumstance of that development,

•   Applying the reasoning in Wehbe v Pittwater (2007) 156 LGERA 446; [20007] NSWLEC 827 at [42]-[43], I have given weight to the fact that such LEP provisions or requirements are not ends in themselves, but rather a means of achieving environmental or planning objectives:

“42   An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non‑compliance with the standard: [citations omitted]

43   The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).”

• The objective of cl 6.21 of LEP 2012 is “… to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Kensington and Kingsford town centres.”

• I am satisfied, for the reasons detailed earlier in this judgment, that the proposed exhibits design excellence, thus meeting the objective of cl 6.21 of LEP 2012 notwithstanding that the requirement at subcl (5) to hold a competitive design process was varied by the Applicant.

118 For the proceeding [preceding] reasons, consistent with subcl (6) of cl 6.21 of LEP 2012, I am satisfied that the competitive design process required under subcl (5) is unnecessary in the circumstances of the proposed development.

110. As can be seen, the Commissioner records, as the first contributory factor to her cl 6.21(3) satisfaction factors, that she has made her determination of design excellence. However, as can be seen, the Commissioner also sets out other factors with which she has engaged before reaching her conclusion that it was not appropriate to require the holding of a competitive design process.

111. It is to be repeated that the task facing the Commissioner in determining whether or not to exercise the discretion available to her pursuant to cl 6.21(6) of the LEP is a classically evaluative one in the fashion recently discussed by Basten AJA in Ross v Lane [2022] NSWCA 235. As can be seen from all of the evidence and submissions set out above from the hearing before the Commissioner, together with the detailed material contained in Annexure A to this decision, it was open to her to conclude that the process undertaken by the Company, as described in that material, comprised a proper merit basis upon which (when combined with her finding that the amended design of the Company’s proposal demonstrated “design excellence”) to dispense with the requirement for a competitive design process. Although laconically expressed, this is the inescapable conclusion to be drawn from the emphasised words I have earlier set out in the fourth dot‑point from [117] of the Commissioner's decision.

112. For this reason, the Council's first basis of complaint is without foundation and is to be rejected. Ground 1 fails.

The second of the Council’s complaint’s - Ground 2

Introduction

113. I now turn to address Ground 2 advanced by the Council

The oral evidence before the Commissioner

114. During the course of his questioning of Mr Cadogan, Mr Astill addressed a series of questions to him as to what understanding Mr Cadogan had of the words in cl 6.21(6) of the LEP being “in the circumstances of the development”. Although it is a lengthy passage of the transcript before the Commissioner, it is appropriate to reproduce it in full as it bears on how the Commissioner has approached her consideration of, and determination concerning, the second of the issues raised in this appeal on behalf of the Council. The relevant transcript passage is in the following terms (Transcript 3 March 2022, page 27, line 41 to page 29, line 44):

ASTILL: …. So the application relies on subclause (6) of 6.21, which is that the consent authority - I'll read the words. "A competitive design process is not required under subclause (5) if the consent authority", here the Court", is satisfied that such a process would be unreasonable or unnecessary in the circumstances of that development". So do you agree that the concession is available having regard to the circumstances of the development?

WITNESS CADOGAN: Yes.

ASTILL: You must agree with that, because that's what it says. The question then is what that means, I suppose, but I'll move on to that. The development, of course, is the development for which consent is sought. That is here, boarding house with mixed use at ground level. That's right, isn't it?

WITNESS CADOGAN: Yes.

ASTILL: The circumstances of it are its physical form, design and uses. That's one circumstance?

WITNESS CADOGAN: Yes.

ASTILL: Another circumstance is its context physically, having regard to its neighbourhood.

WITNESS CADOGAN: Yes.

ASTILL: Another circumstance is the controls that apply to it legally, the LEP, DCP and any other planning controls.

WITNESS CADOGAN: Yes.

ASTILL: I suggest to you that something which is not a circumstance of the development is the process that the architects or anyone else came up with to design the development.

WITNESS CADOGAN: I don’t know that I agree with that. I think that is a circumstance of the development, how it's designed.

ASTILL: It's a circumstance of the process that led to the formulation of the development, but I put to you it's not a circumstance of the development for which consent is sought.

WITNESS CADOGAN: Well, I disagree.

ASTILL: Can I suggest to you that circumstances of development that would render a design competition unreasonable or unnecessary would be things like small buildings or very minor external alternations to existing buildings.

WITNESS CADOGAN: Yes.

ASTILL: They would be circumstances where you would agree, I think, and everyone would probably agree, it would be unreasonable or unnecessary to have a design competition?

WITNESS CADOGAN: Yes, I, I agree with that. And they're often with any other..(not transcribable).. Not this one, but they are often in the Director General's guidelines for competition.

ASTILL: That's right. Those circumstances are not the circumstances of this application, though, are they? It's a very substantial development, isn't it?

WITNESS CADOGAN: Yes.

ASTILL: And it's on a site that's identified as a key node site and similar things under the DCP?

WITNESS CADOGAN: It is, yeah.

ASTILL: If we were confined or if the Court decided that the circumstances of the development were confined to those kinds of things, you would agree that a design competition would be necessary?

WITNESS CADOGAN: What kind of things? I'm sorry.

ASTILL: The substantial nature of the development and the fact that it's on a key node site.

WITNESS CADOGAN: The way I read that clause is that it's open to the consent authority to form a view about it being unreasonable or unnecessary in an unlimited set of circumstances, not just those two things.

ASTILL: I understand that's what your view is, but I'm asking you to assume, contrary to your view that you just expressed again - assume just for the purpose of the question that the Court is confined to just the physical nature of the development and its physical and statutory site context. If those were the only things the Court were permitted to consider as circumstances of the development, you would agree it would not be unreasonable or unnecessary to require a design competition?

WITNESS CADOGAN: I suppose so, but that's a very strange limitation, I find.

ASTILL: I understand you don't agree with the premise of the question. But if the premise is accepted, contrary to your view that you've said again, that's the case, though. Now--

WITNESS CADOGAN: I suppose.

ASTILL: All right. Now, can I suggest to you that the process the applicant has gone through here, a process of review, is quite different to a design competition process. That's right, isn't it?

WITNESS CADOGAN: It's certainly different. I don't know that it's quite different, but it is different, yes.

115. Similarly, Mr Astill questioned Mr Mead on this matter. It is also appropriate to reproduce the transcript passage addressing this issue (although it, too, is lengthy) (Transcript 3 March 2022, page 31, line 28 to page 33, line 15):

ASTILL: In fact, can I take you to 6.21(3).

WITNESS MEAD: Yes.

ASTILL: Now, that's a clause that sets up, by itself, independently of anything else, and it's self-contained, that requires the consent authority to be satisfied that the development exhibits design excellence.

WITNESS MEAD: Yes.

ASTILL: That's what that clause does, doesn't it?

WITNESS MEAD: Yes.

ASTILL: I put to you subclauses (5) and (6) are about something else. They're about a design competition. I put to you you don't get out of doing a design competition just because you comply with a clause that you already have to comply with. That's right, isn't it?

WITNESS MEAD: No, I don't agree.

ASTILL: You get out of doing a design competition where you satisfy the circumstances in subclause (7). I'm sorry, subclause (6).

WITNESS MEAD: But not these circumstances in subclause (6). (6) talks to there being circumstances. It doesn't list what those circumstances are, so I would say they're unfettered.

ASTILL: Well, it doesn't say, "In the circumstances of the case". It says, "In the circumstances of the development", and "The development" means the development for which consent is granted, doesn’t it?

WITNESS MEAD: Yes. Well, the, the use of the term "Development" in that clause probably requires - no doubt the lawyers will have a field day with that. but in terms of whether that's development as, as, as, as defined by the Act or whether it's development as a common understanding and, and, and certainly my opinion, the development as a process. So, as I said, I'm not the person to argue about the use of the, the word in that clause, but development certainly describes a process. In fact, development as a - as a - as a term outside of planning probably also means a process rather than, than the object, being a building.

ASTILL: You, as you say in, back to paragraph 1.10, you rely on the process and particularly what you call rigorous urban design analysis, amongst other things in that paragraph.

WITNESS MEAD: The central basis for my position is very simple. Clause 6.21 has a sole objective. The sole objective is to ensure that development exhibits design excellence, and then it does on. In my view, this question as posed in subclause (6) needs to be considered against the sole objective, and so my view is where design excellence is achieved through a different process, and that process may be the process that we've described that we went through of peer review where the involvement of many experts with specific expertise of urban design.

It may be that, or it may be the fact that the development is so well designed by Turner Architects that it gets true design excellence and meets the objective anyway. So there's a couple of circumstances in that. The other circumstances go to the site and the development to the extent that the site - I disagree that it's a very large site. It's a 1,200-square-metre site, a 1,275‑square‑metre site, and it forms, yet, only part of the K6 node site. So in my view that's another circumstance. We're not designing the whole of the K6 site, and that is well a circumstance that, in my view, lessens the, the importance or need for a design competition.

Another circumstance being that it's not dealing with the corner, and the corner, through all the experts' evidence, is the important bit. Mr Baker has talked extensively about the importance of the corner and that's the K2K controls, going back to your questions about the importance of the design at the start, in my view, is heavily predicated on the importance of corners. This is not a corner site. It's an infield site on the setback of corner much less in size than the overall K6 site. So again, I say that's a circumstance.

I say another circumstance is the fact that this applicant has chosen not to simply submit a DA with architectural plans. They have - they have opted to go through a process that very importantly looks not just at the site but extensively at the whole of the K6 site, including how that - the balance of the site may be developed in the future. And they don't just look at that in the cursory sense.

They look at that in a sense by providing no less than five options as to how that might develop into the future. I say that's going above and beyond any typical DA requirement. I say that's setting in place a process and an approach that sets up a circumstance whereby a design competition is the - is the only way or the means to the end of achieving design excellence. I say the process and the approach here has achieved design excellence in a different manner - in a different way, and that's a circumstance of the development, whether you look at development as a process or an outcome.

116. Mr Astill's questioning of Mr Mead returned to this topic a short time after the conclusion of the above transcript passage. Although also lengthy, it is appropriate to set out this further passage in its entirety. This element of the exchange between Mr Astill and Mr Mead was in the following terms (Transcript 3 March 2022, page 34, line 17 to page 38, line 38):

ASTILL: Some of the first few questions I asked you were that you agree that design excellence included not just architectural merit but also matters of urban design?

WITNESS MEAD: Yes.

ASTILL: And so when I say urban design I may be wrong but you'll correct me no doubt if I'm wrong. I'm trying to set aside architectural merit of the building and look at urban design in its context and having regard to the urban design objectives that we touched on in the DCP. I'm not sure if that makes it clearer or less clear.

WITNESS MEAD: No, it doesn't make it any clearer at all in terms of your question as to the expertise you're going to. To assist the Court, my opinion and this is probably contested but the urban design matters, urban design is dealing with spaces between buildings and how they fit into an urban context wider than site scale. Town planning of course deals with contextual matters that significantly overlap that and so I think unfortunately it represents a difficulty for this Court in the sense of taking urban design evidence. Urban design evidence deals with proofing of architecture but I think you've just said that urban designers don't deal with architecture.

Planners deal with architecture and planners deal with context and analysis, the spaces between buildings and how buildings fit into the urban environment so I think that the simplest answer - and I’ll make very clear I don't have tertiary urban design qualifications but I think in terms of your question most definitely planning and urban design evidence will overlap significantly because we're dealing with similar built environment objectives so I hope I'm being helpful in answering the question. Maybe you can frame it a bit more specifically.

ASTILL: Thank you. I'm grateful, that is helpful I think. I'll approach this another way perhaps. Can I go back to the same paragraph in the joint report 1.10 we were looking at earlier.

WITNESS MEAD: Yes.

ASTILL: You refer to the rigorous urban design analysis to justify DCP variations. That's what you say there. You are relying on the rigorous design analysis which you set out in another document which you wrote I think which is part of exhibit B now. Is the rigorous urban design analysis that you refer to there what you set out in much more detail in a document, I'm still trying to find the beginning of it, dated 22 November 2021 Design excellence Response? I think you're the author of that.

WITNESS MEAD: The answer to that is no. That document is not in itself the rigorous urban design analysis. It certainly contains urban design analysis and it certainly contains a summary of the design process that has been followed through this DA. When I refer to rigorous urban design analysis in 1.10 I talk to a series of processes. I don't talk to a single document. I talk to a process that Turner Architects have been through, award-winning architects that have studied this in detail not just for the DA but in commenting and making submissions also on the planning controls when they were in draft form. Those documents also considered urban design in detail.

There was then the processes that are set out in my document dated 22 November that refer to the independent urban designers that were involved in a further process of rigorously analysing urban design aspects of this site and development. I refer also to the fact that council's design review panel again comprising three very reputable qualified perhaps not urban designers but qualified architects who also considered the proposal and rigorously analysed urban design. There's a process through the s 34 forum of this Court and then there's been the joint conferencing process where four experts have further considered urban design.

So I refer to an overall process. I don’t refer to a single document. I refer to a series of plans. Those plans include the architectural set that does detail urban design analysis but there's also the document attached to the joint report called Site Strategy. That's another urban design analysis document one that you wouldn't always find with a DA that helpfully analyses context of the site beyond the site boundary itself. So I talk to that process and collection of documents when I talk to rigorous urban design analysis.

…

ASTILL: Can we go to the 22 November document. Commissioner, it's part of exhibit B. My exhibit B is broken up into two parts. The first part starts at page--

…

ASTILL: --110, yes. I want to particularly go to page 124. I don't know whether you've got the pagination in the exhibit, Mr Mead, or whether you've got your internal - the internal pagination is page 15 of that document.

WITNESS MEAD: I've got that, yes.

ASTILL: You describe at the bottom of that page how a design competition might work and you then describe later on starting I think at page - sorry, earlier on you describe the process - some of the process having regard to your last answer, some of the process that has been engaged in in the design - what you refer to in this document as evolution. Can I put to you that what has happened in fact is that there has been a design which has then been reviewed by a series of different people and it has evolved and ideas have been taken on board resulting in what's before the Court now. Can I put to you that that process is fundamentally different to a design competition process.

WITNESS MEAD: I don't agree.

ASTILL: Well, let's look at what you say at the bottom of page 124. "A minimum of three competitors participated in a design competitive process," so that's three independent people working separate from one another who come up with three different designs. That's the idea of it, isn't it?

WITNESS MEAD: Most design competitions have a number of competitors so yes, three's a typical number, I agree with that bit in terms of separate competitors. I don't agree with the last bit in terms of three competitors come up with three different designs. I think that needs to be unpacked a little bit but no doubt you'll come back to that.

ASTILL: Let's dealt with it now. Why wouldn't they come up with - they're not going to come up with three identical designs, are they?

WITNESS MEAD: My experience with design competitions and Mr Cadogan has also commented in this regard, the design competition starts with a brief and that design competition brief in my experience has been prescriptive in the sense that three designs may come back. You rightly say very likely come back with three different - let me call it styles of architecture. With a site like this it seems to be put by the respondent that any design brief would be so prescriptive so as to say, You shall comply with the DCP or you shall comply with some other parameters if it weren't the DCP.

My expectation is that the outcomes of that whilst buildings may come back with slightly different forms or architecture, my experience with other competitions would suggest that the approaches to the site would be heavily guided by any brief, so your comment that you would come back with three different designs, yes, architecturally they may look different, they may involve different layouts and so on, but they would be heavily guided by an identical design brief which typically in my experience having been involved in a number of design competitions goes as far as setting out GBA requirements. In a case like this it might even be number of room requirements. It might even talk to the heights of buildings, the setbacks of them and so on.

So the degree of prescription in a design competition for a site like this that is very different to, say, Barangaroo, go and tell us what the controls in a design outcome should be and go for your life. It would be very different. So I just don't agree that the outcomes would come back with three fundamentally different designs or approaches to the site design.

ASTILL: Obviously this is not Barangaroo neither is it Bennelong Point but Sydney is the recipient of one of the great benefits of a design competition in that we have the Sydney Opera House. You agree with that?

WITNESS MEAD: I won't comment on that.

ASTILL: Well, if someone had designed a building to go - a conventional building to go on the Opera House site and then went through the process that your applicant has gone through here to get other architects to review it and so forth and make suggestions, I put it to you it's highly unlikely someone would look at a conventional building and say, Look, that's fine but why don't you make it look like sailboats?

WITNESS MEAD: I think the answer to that is the design competition for the Opera House which you may not know much about certainly was not prescribed by planning controls, height limits, setbacks and various things like that so a totally different scenario to what we're talking about here.

COMMISSIONER: Neither was Utzon's design the preferred one of the panel.

WITNESS MEAD: Exactly right.

COMMISSIONER: That's a matter of history.

WITNESS MEAD: I could talk about it all day.

ASTILL: Arguably it might be interesting but we probably should stick to this application. As you've said in a couple of answers it depends on what is the brief that goes out to the architects. If it's highly prescriptive then you're more likely to get proposals that closely resemble each other. Do you agree with that?

WITNESS MEAD: Yes, that makes sense.

ASTILL: In this case there was never a competitive brief prepared, was there?

WITNESS MEAD: There wasn't a competitive brief prepared, no.

ASTILL: So we don't know whether a brief would have been prescriptive or not. We just don't know. It's speculative.

WITNESS MEAD: I made that comment in one of Mr Baker's comments in the joint report that he says a design competition should stem from the fact that there's a variation to the DCP controls and to me it seems to be suggested in the respondent's contentions that strict compliance with the planning controls is very important so I would expect that a design competition brief that's signed off by council would probably expect compliance with the DCP controls.

ASTILL: That's an interesting insight. If that had been the case, then the current proposal would have been a non‑conforming response, wouldn’t it?

WITNESS MEAD: Exactly the case, yes. I would put some faith in the design process that if there were a design competition for this site I would hope that an exercise such as the applicant has gone through would lead to a brief by identifying the facts and it's agreed between the four experts that at least compliance is not practical or feasible to the extent we talked before about. That would require a 6.5 metre wide tower to which Mr Baker said it's not possible to do that. So who knows what the design brief would say? We're talking hypotheticals.

ASTILL: Equally, who knows what the responses to the design brief would have been? It's completely unknown.

WITNESS MEAD: Look, I don't agree with that to the extent that Turner has analysed this site along with several people here reviewing the approach to this site and these are all people very well qualified and very good at what they do and I would expect that answers very similar to what is before the Court would be arrived at. This is the very point that this application is designed, has been arrived at through a process, a rigorous design process. It has been peer reviewed. There have been multiple people involved both the project architect and others independently peer reviewing the application and my view is that that has arrived at a solution just in the same way as a solution would be arrived at through a design competition so I don't - I don't accept that by going through the design competition process that we would arrive at different principles to what in my view and Mr Cadogan's view are the correct principles for this site and a correct response to the site.

ASTILL: I suggest to you that's inconsistent with your earlier answers where you agreed that we don't know what a design brief would look like and therefore we don't know what a response to it would look like.

WITNESS MEAD: Yes. I make that point to the extent we're talking about hypotheticals. There may be different ways of designing a building on this site but the very point here is the question of this development, how it was arrived at and whether it meets the principles and whether it achieves design excellence as per the objective of cl 6.21.

117. The Commissioner then invited Mr To to ask Mr Mead any questions in response to the above questioning by Mr Astill. The transcript relevantly records (Transcript 3 March 2022, page 39, line 14 to page 40, line 2):

TO: Commissioner, I just wanted to go back to Mr Mead on this last passage and the difference between a design competition and the process that has been undergone and which is described in his letter of 22 November.

COMMISSIONER: Yes.

TO: Mr Mead, in the design competition model if I can call it that you have the different designers - different competitors preparing a proposal and submitting it for judgment, that's the essence of the process, isn't it?

WITNESS MEAD: That's correct, yes.

TO: In that sense it's a static model of here's my proposal, judge it against someone else's.

WITNESS MEAD: That's correct, yes, and a winner is awarded.

TO: But there is a difference between that and an iterative process such as you've described that was undergone here for this proposal, isn't there?

WITNESS MEAD: Yes, definitely. My view the process that has been undertaken for this application is an evolutionary process whereby there was a scheme that was submitted as the DA after a lot of design testing, rigorous urban design analysis that arrived at a scheme that was submitted. That scheme has evolved significantly as the respondent would know from the time it was lodged to the form that it's in today and that evolution in form has been the direct response to design critique at a number of levels throughout the process, so that's quite different to a design competition process that has a start and an end. The three competitors submit their schemes in accordance with the brief and a winner is awarded and that then goes on to become a DA.

TO: Even if you exclude the critique that comes through a DA and appeal process, the design review process that involved other architects here is one that allows for improvements and change to a design which is something that a design competition does not permit or allow, isn't it?

WITNESS MEAD: Yes, that's right. There's not the evolutionary nature of the design competition of submitting an entry, having it peer reviewed and then going back and having a further crack at it, so to speak.

TO: So in one sense that is a difference and, may I suggest, a significant difference.

WITNESS MEAD: A difference and a difference that in my opinion as I've set out in that document makes the process here a superior one.

Conclusion

118. As can be seen from the terms of the ground as pleaded, this complaint relates to the proposition advanced for the Council that the words “in the circumstances of that development”, as used in cl 6.21(6), should be construed as being confined to the precise nature of the design of the development, which was the subject of the proceedings before the Commissioner. This construction expressly proposes that nothing antecedent to the final design about which the Commissioner was required to adjudicate could have formed any part of her consideration of whether or not to exercise the power of dispensation given by the provision, as such matters did not fall within the scope of the phrase “in the circumstances of that development”.

119. I have earlier noted that Mr Astill had questioned Mr Mead extensively as to how he understood that element of cl 6.21(6). The questioning by Mr Astill was predicated on the assumption that the proposition now advanced in Ground 2 was correct. Mr Mead explained (in a number of lengthy responses to Mr Astill) why he considered that this approach was not correct.

120. It is also to be observed that the line of questioning had, as a significant foundational element of matters arising in it, the “Alternative Design Process” process set out in Exhibit E which I have dealt with earlier (necessarily at some length).

121. The Commissioner’s rejection of this proposition advanced by Mr Astill on behalf of the Council also is to be understood in the earlier reproduced (at [77]) (and emphasised) element of the fourth dot‑point set out by the Commissioner in [117] of her decision.

122. Although expressed with considerable brevity, that emphasised element of [117] necessarily implies both an embracing by the Commissioner of Mr Mead's approach rather than that which was pressed on behalf the Council (a matter of importance in circumstances where the only mention, by either advocate in the hearing before me, of the document that became Exhibit E was one, by inference, where Mr To said (Transcript 16 December 2022, page 14, lines 11 to 21):

What your Honour doesn't know in exhibits A and D, but it in fact was in something that hasn't been tendered, is that the application was lodged before the relevant provisions came into effect and it was one of the things that was identified as a circumstance. We accept it's not a matter that the correspondence dealt with.

HIS HONOUR: I'm going to say to you that is a Rumsfeldian submission; if I don't know, I can't know.

TO: I can tender the relevant design report that was referenced by the Commissioner in her judgment.

123. It is, however, to be noted that Mr To did not then proceed at any time to tender the document which has now become Exhibit E.

124. It is clear that the Commissioner accepted that the process, outlined by Mr Mead in the final five pages or so of this document, did constitute appropriate and relevant information to be taken into account as part of her discretionary weighing of whether or not to dispense with the requirement for a competitive design process.

125. Although the brevity of the Commissioner’s reasoning in this regard, and what is necessarily to be inferred from the evidence and submissions before her, could perhaps have been more felicitously and fully explained, I am satisfied that what is set out in the concluding portion of the fourth dot‑point of [117] of her decision provides a sufficient basis to reject Ground 2.

126. This is particularly so when (although not addressed at all before me) Exhibit E explains why the process which was undertaken for the Company, as described in the exhibit’s final five pages or so, did provide a basis upon which the Commissioner could conclude that it was appropriate to dispense with a competitive design process.

127. The Commissioner was faced with a choice of how to interpret this element of cl 6.21(6). It is not suggested here that the choice was not available to her - merely that she chose incorrectly. The choice was clearly one to be approached on the basis of conventional statutory interpretation (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28) without any need to read additional words into the provision as might otherwise have been permitted if necessary (Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9).

128. Having concluded that the process with which the Company had approached designing its proposed development could be addressed by examining it through the lens afforded by the final portion of Exhibit E, there is nothing in the Commissioner doing so that would suggest that the conclusion she reached on that basis was legally unreasonable or one not available to her (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63).

129. Ground 2 also fails.

Costs

130. For appeals pursuant to s 56A of the Court Act, costs follow the event. As the Council has been unsuccessful in its appeal, the Council is to pay the Company's costs of the appeal.

Orders

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

1. The appeal pursuant to s 56A of the Land and Environment Court Act 1979 is dismissed;

2. The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed; and

3. The exhibits are returned.

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Annexure A

Exhibit E (52181, docx)

Decision last updated: 17 March 2023