Toga Penrith Developments Pty Limited v Penrith City Council

[2022] NSWLEC 117

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117

Hearing dates:

4 August 2022

Date of orders:

12 September 2022

Decision date:

12 September 2022

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

The Court orders:

(1)   The appeal is dismissed.

(2)   The notice of contention is upheld.

(3)   The appellant is to pay the respondent’s costs of the appeal and the notice of contention.

Catchwords:

APPEAL – appeal against Commissioner’s decision – refusal of development consent – mixed use development in Penrith City Centre – non-satisfaction of jurisdictional preconditions – overshadowing of public open space – construction of clause – whether public open space must be in Penrith City Council – whether development exhibits design excellence – relevant matters to be considered – architectural design competition to be held – whether views of Design Integrity Panel after competition held relevant matter – competition to be held in relation to the development – whether competition held in relation to the development on appeal

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 1.5

Interpretation Act 1987 ss 3, 5, 34, 35

Land and Environment Court Act 1979 s 56A

Penrith Local Environmental Plan 2010 cll 8.1, 8.2, 8.4, 8.7

Cases Cited:

Australians for Sustainable Development Inc v Minister for Planning (2011) 182 LGERA 370; [2011] NSWLEC 33

Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375; [2021] HCA 12

Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7

Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17

Taylor v The Owners- Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 1017

Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; (2014) 200 LGERA 375; [2014] NSWCA 105

Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167

Category:

Principal judgment

Parties:

Toga Penrith Developments Pty Limited (Appellant)
Penrith City Council (Respondent)

Representation:

Counsel:
Mr R Lancaster SC and Mr J Wherrett (Appellant)
Mr J E Lazarus SC (Respondent)

Solicitors:
Addisons (Appellant)
Dentons (Respondent)

File Number(s):

2022/38343

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 1

Citation:

[2022] NSWLEC 1017

Date of Decision:

14 January 2022

Before:

Morris AC

File Number(s):

2021/126870

Judgment

1. Toga Penrith Developments Pty Limited (Toga) lodged a development application with Penrith City Council (the Council) seeking development consent for a mixed use development at Penrith. Toga appealed against the deemed refusal of the development application to the Court. Acting Commissioner Morris heard the appeal. She determined that the appeal should be dismissed and the development application refused: Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 1017. Toga appealed against the Commissioner’s decision and orders under s 56A(1) of the Land and Environment Court Act 1979 (Court Act) on four grounds.

2. Grounds 1 and 2 contended that the Commissioner erred on questions of law in her construction and application of cl 8.2 of Penrith Local Environmental Plan 2010 (PLEP). Grounds 3 and 4 contended that the Commissioner erred on questions of law in her construction and application of cl 8.4 of PLEP. Toga sought for the Commissioner’s decision and orders to be set aside and for the matter to be remitted to a different commissioner.

3. The Council defended the Commissioner’s decision on the grounds raised by Toga and furthermore sought, by a notice of contention, to affirm the Commissioner’s decision on grounds other than those relied on by the Commissioner, which related to cl 8.4(3) of PLEP.

The clause 8.2 grounds

4. The land on which the proposed development is to be carried out, at 634-638 High Street and 87-93 Union Road, Penrith, is zoned B4 Mixed Use. The proposed development would overshadow a nearby triangular-shaped area of land bounded by Mulgoa Road, Union Road and John Tipping Grove, zoned RE1 Public Recreation. This area has not formally been developed as public open space, but the Commissioner found, and neither party challenges the finding, that the land is “public open space” for the purposes of cl 8.2 of PLEP: [139] of the judgment.

5. Clause 8.2(3) of PLEP sets a jurisdictional precondition to the grant of development consent:

“(3)  Despite clauses 4.3, 5.6 and 8.4, development consent may not be granted to development on land to which this Part applies if the development would result in overshadowing of public open space to a greater degree than would result from adherence to the controls indicated for the land on the Height of Buildings Map.”

6. The “land to which this Part applies” is defined in cl 8.1 of PLEP:

“This Part only applies to land identified as ‘Penrith City Centre’ on the Clause Application Map.”

7. The Clause Application Map identifying land as “Penrith City Centre” includes all of the land on which development is to be carried out but not the nearby area of public open space that would be partially overshadowed by the development.

8. The parties agreed that the jurisdictional fact in cl 8.2(3) was satisfied, as the proposed development would result in overshadowing of the public open space to a greater degree than would result from adherence to the controls indicated for the land on the Height of Buildings Map. This was a result of the proposed development exceeding the height controls indicated for the land on the Height of Buildings Map: at [136] and [140] of the judgment.

9. Nevertheless, at issue before the Commissioner and on this appeal is whether cl 8.2(3) applied to the proposed development. Toga argued that the subclause only applied if not only the land on which the development is to be carried out but also the public open space overshadowed by the development are identified as Penrith City Centre on the Clause Application Map. In the present case, whilst the land to be developed is identified as Penrith City Centre, the overshadowed public open space is not identified as Penrith City Centre on the Clause Application Map. Accordingly, Toga argued that the jurisdictional precondition in cl 8.2(3) did not operate to preclude development consent being granted to the development.

10. The Commissioner did not accept Toga’s argument:

“Because the clause applies to development on land within the PCC and the application relates to land within the PCC, the provisions of the clause apply to the application. I consider that the provisions of subclause (3) do not distinguish whether the public open space to be overshadowed has to be within the PCC, it is about development within the PCC. The objective of the clause is to protect public open space, any public open space. It is not confined to public open space within the PCC. I read the clause as applying to development on land within the PCC and therefore, because the application is on land within the PCC and the additional building height overshadows public open space, the terms of the clause apply and consent cannot be granted.” (at [141] of the judgment).

11. Toga challenges, by grounds 1 and 2, this construction of cl 8.2(3) of PLEP. Toga firstly noted that cl 8.1 clearly states that:

“This Part only applies to land identified as ‘Penrith City Centre’ on the Clause Application Map.”

12. Toga noted that “this Part” is “Part 8 Local provisions – Penrith City Centre”. Toga noted that the heading to Part 8 is taken to be part of PLEP, a type of environmental planning instrument that is an instrument for the purposes of the Interpretation Act 1987 (see s 3(1)): s 35(1)(a) of the Interpretation Act.

13. Toga submitted that cl 8.1 and the heading to Part 8 of PLEP make clear that the Part only applies to land that is located in the Penrith City Centre, both the land to be developed and the public open space to be overshadowed.

14. Secondly, Toga submitted that this construction is consistent with the statutory purpose: s 33 of the Interpretation Act. The purpose of Part 8 is to impose development controls on land located in the Penrith City Centre so as to limit the extent to which development in the Penrith City Centre can result in overshadowing of public open spaces within the Penrith City Centre. Given the evident concern with land within the Penrith City Centre, Part 8 was not intended to prohibit a development on the basis that it would result in overshadowing of public open spaces outside the Penrith City Centre.

15. Thirdly, Toga submitted that this construction was supported by the legislative history. Clause 8.2 of PLEP, when originally made, applied only to specified public open space identified in the former cl 8.2(2):

“This clause applies to land in the vicinity of Allen Place, Memory Park and Judges Park and to High Street between Station Street and Lawson Street, identified as ‘Area 4’ on the Height of Buildings Map, being part of the land to which this Part applies.”

16. The reference to “the land to which this Part applies” was a reference to cl 8.1 which provided, as it still does today, that the Part only applied to land identified as “Penrith City Centre” on the Clause Application Map.

17. The consequence was that originally cl 8.2 only applied to specified public open space identified as Area 4, which was within the Penrith City Centre. The objective of cl 8.2 as originally made was to protect this specified public open space from overshadowing (the former cl 8.2(1)).

18. The jurisdictional precondition in the original cl 8.2(3) precluded development consent being granted to development on land adjacent to land to which the clause applied, being the land specified in the original cl 8.2(2) quoted earlier:

“Despite clauses 4.3, 5.6 and 8.4, development consent may not be granted to development on land adjacent to land to which this clause applies if the development would result in overshadowing to a greater degree than would result from adherence to the controls indicated for the land on the Height of Buildings Map.”

19. The Council had submitted in December 2015 a planning proposal to amend cl 8.2 of PLEP to broaden its application. The proposed amendment was as follows:

“8.2 Sun access

1) The objective of this clause is to protect specified public open space from overshadowing.

2) This clause applies to land in the vicinity of Allen Place, Memory Park and Judges Park and to High Street between Station Street and Lawson Street, identified as ‘Area 4’ on the Height of Buildings Map, being part of the land to which this Part applies.

2) Despite clauses 4.3, 5.6 and 8.4, development consent may not be granted to development on land to which this Part applies adjacent to land to which this clause applies if the development would result in overshadowing of public open space to a greater degree than would result from adherence to the controls indicated for the land on the Height of Buildings Map.

3) This clause does not prohibit development that does not alter the exterior of any existing building.” (p 11 of planning proposal).

20. The Council explained the rationale for the amendments as follows:

“The objective of Clause 8.2 is to protect specified public space from overshadowing impacts caused by development on adjoining land that wish to exceed the maximum building height. This clause currently applies only to land identified as ‘Area 4’ on the Height of Buildings Map, which is located around the land currently zoned RE1, being the Allen Park Carpark. As a result of the proposed rezoning, the land to which this clause applies must be reassessed.

There is merit in describing the outcome that the controls should achieve rather than identifying a fixed area on a map to which this clause applies. In doing so, all public open space in the Penrith City Centre will be protected from overshadowing. Furthermore this allows the park to expand in the future and still be protected from overshadowing.” (p 10 of planning proposal).

21. The Council later added:

“As discussed in Part 2, it is proposed to remove ‘Area 4‘ from the Height of Buildings Map and instead amend clause 8.2 to ensure solar access is a consideration for all public open space in the Penrith City Centre, not just the City Park site.” (p 24 of planning proposal).

22. Toga laid emphasis on the Council’s choice of language in these passages, referring to “all public open space in the Penrith City Centre”. Toga noted that the amendments sought by the Council were made to PLEP by Amendment No 15.

23. Toga submitted that the reasons advanced by the Council in the planning proposal as to why they sought the amendment are relevant to understanding the intention of the Minister’s delegate in making the amendment. The Council’s reasons are extrinsic material which assist in fixing the meaning of the statutory text: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. Toga submitted that, having regard to the Council’s reasons, the delegate of the Minister, on the recommendation of the Council, made changes to PLEP in order to protect “public open space in the Penrith City Centre”. The delegate did not intend to place limits on the extent to which development in the Penrith City Centre can overshadow public open space anywhere.

24. Fourthly, Toga submitted that this construction of cl 8.2 as only applying to public open space in the Penrith City Centre is supported by cl 8.7:

“Clause 8.7(3) provides that the consent authority may consent to development on land to which the clause applies that exceeds the maximum height shown for the land on the Height of Buildings Map if the proposed development includes community infrastructure. To read clause 8.2(3) as prohibiting development consent where there is overshadowing of public open space anywhere would be a limitation on cl 8.7(3) which was not intended. In this regard, it is significant that, while cl 8.2(3) operates ‘despite clauses 4.3, 5.6 and 8.4’, it does not operate ‘despite’ cl 8.7’. That omission was deliberate – it was intended that development consent could be granted to a development that exceeds the maximum height shown for land on the Height of Buildings Map if the development includes community infrastructure subject to a narrow exception (ie, that there would be overshadowing of public open space in the Penrith City Centre to a specified degree).” (paragraph 19 of Toga’s written submissions).

25. The Council contested that the Commissioner had erred in her construction or application of cl 8.2 of PLEP.

26. First, the Council submitted that the reference in cl 8.2(3) to “land to which this Part applies” qualifies the proposed development but not the public open space potentially overshadowed by the development. In clear terms, cl 8.2(3) operates to preclude the grant of development consent to “development on land to which this Part applies” if “the development” would overshadow public open space. The land to which the Part applies is land identified as Penrith City Centre on the Clause Application Map (cl 8.1). Clause 8.2 regulates the grant of development consent to development on land in the Penrith City Centre, but does not require the public open space that might be overshadowed by the development in the Penrith City Centre also to be in the Penrith City Centre.

27. The Council submitted that if it had been intended to limit the operation of cl 8.2 to public open space in the Penrith City Centre, the clause could easily have done so. The clause is silent as to the location of the public open space whose overshadowing is to be assessed.

28. Secondly, the Council referred to the objective of the clause in cl 8.2(1) “to protect public open space from overshadowing”. The objective is framed in broad terms: to protect public open space – any public open space – from overshadowing.

29. Thirdly, the Council submitted that Toga’s construction involves reading words into cl 8.2(3), such that it should be read as referring to development which “would result in overshadowing of public open space in the Penrith City Centre”. The Council submitted that reading these additional words in cl 8.2(3) would fundamentally change the scope of the provision and is not an available constructional choice: see Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [37], [38], [65].

30. Fourthly, the Council disputed the legitimacy of having regard to the Council’s planning proposal for the amendment of cl 8.2 of PLEP in the interpretation of cl 8.2. The Council noted that s 34 of the Interpretation Act does not support regard being had to extrinsic material, such as the Council’s planning proposal, in the interpretation of environmental planning instruments. Section 34 does permit consideration to be given to extrinsic material in the interpretation of an Act or a statutory rule. However, s 5(6) of the Interpretation Act applies only specified sections that apply to a statutory rule to an environmental planning instrument. Section 34 is not one of those specified sections. PLEP is an environmental planning instrument but is not a statutory rule. Section 34, therefore, is not applied by s 5(6) of the Interpretation Act to PLEP.

31. Furthermore, the Council submitted, the subjective intentions of the Council in promoting the amendment of cl 8.2 in its planning proposal provides little, if any, assistance in the interpretation of cl 8.2 of PLEP: Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7 at [128].

32. In any event, even if regard may be had to the planning proposal, the Council submitted it supports rather than detracts from the construction of cl 8.2 adopted by the Commissioner. The purpose of the amendment of cl 8.2 appears to have been to broaden the protection conferred by the clause such that it was not limited to specified land identified as “Area 4” in the Penrith City Centre but rather applied to public open space generally.

33. The Council submitted that the statement in the planning proposal that “all public open space in the Penrith City Centre will be protected from overshadowing” is equivocal. That statement is not inconsistent with the construction of cl 8.2 adopted by the Commissioner, as all public open space in the Penrith City Centre would be protected from overshadowing, but this is not to say that public open space outside the boundaries of the Penrith City Centre will not also be protected. Clause 8.2 is equally capable of protecting from overshadowing public open space within and outside the Penrith City Centre.

34. Fifthly, the Council submitted that cl 8.7 does not support Toga’s construction of cl 8.2 of PLEP:

“Clause 8.7 is not intended to override clause 8.2 – 8.7(3) is expressed to be ‘despite’ cls 3.4, 4.4 and 8.4(5) but not cl 8.2. Clause 8.7(3) is a permissive provision which confers power to grant consent to development of particular height and FSR characteristics ‘despite’ the existence of three particular clauses. Upon its proper construction, all cl 8.7(3) does is to impose different height and FSR standards in respect of development within the Penrith City Centre that includes community infrastructure. The clause does not have anything to say about the operation of cl 8.2. The two provisions may be construed harmoniously, in that a development may be built as high as might be considered feasible (if community infrastructure is provided), so long as there is no increased overshadowing of public open space compared with what might be expected from a height-compliant development.” (paragraph 12 of the Council’s written submissions).

35. I reject Toga’s construction of cl 8.2 of PLEP. It fails to acknowledge the structure and operation of cl 8.2.

36. As to structure, cl 8.2 has only one operative provision, subclause (3). Subclause (1) states the objective of the clause, effectively of subclause (3). Subclause (2) is repealed. Subclause (4) clarifies the operation of the clause, again effectively of subclause (3).

37. Subclause (3) operates to set a jurisdictional precondition to the grant of development consent. It is a negative rather than a positive jurisdictional precondition. Development consent is not to be granted to development on specified land if a specified jurisdictional fact is established. The specified land is “land to which this Part applies”. This land is land identified as Penrith City Centre on the Clause Application Map. The specified jurisdictional fact is that development on this specified land “would result in overshadowing of public open space to a greater degree than would result from adherence to the controls indicated for the land on the Height of Buildings Map.”

38. By this structure, subclause (3) draws a distinction between the land on which development is to be carried out and the land which is overshadowed by that development. For the subclause to apply, the land on which the development is to be carried out must be land identified as Penrith City Centre on the Clause Application Map, while the land which is overshadowed by development on that land must be public open space. But the subclause does not expressly specify that the public open space that is overshadowed must also be land identified as Penrith City Centre on the Clause Application Map.

39. This structure affects the operation of the subclause. Subclause (3) operates to regulate development on land in the Penrith City Centre, by preventing the grant of development consent to development on that specified land, if the jurisdictional fact is established, but does not in terms regulate the overshadowing of the public open space by development on land in the Penrith City Centre. Although the public open space overshadowed by development on land identified as Penrith City Centre is the subject of the jurisdictional fact, it is not itself the subject of regulation by subclause (3). The subclause does not require anything to be done or prevent anything being done on the public open space, as it does for land identified as Penrith City Centre on which development is to be carried out.

40. It is for this reason that the subclause specifies its scope of operation to be with respect to land on which development is to be carried out, and not land that is overshadowed by such development. The subclause expressly specifies that the land on which the development is to be carried out must be “land to which this Part applies”, which is defined in cl 8.1 to be “land identified as Penrith City Centre on the Clause Application Map”, but does not specify that the public open space that is overshadowed by development on that land must be land identified as Penrith City Centre or anywhere else.

41. The location of the public open space is only fixed by the relationship of overshadowing – the public open space would need to be sufficiently proximate to the land to be developed in the Penrith City Centre to be overshadowed by that development. But this relationship of physical proximity does not necessitate that the public open space itself must be in the Penrith City Centre; it may be in the Penrith City Centre but could also be adjacent to the Penrith City Centre.

42. This construction of the text of cl 8.2(3) fits with its context, both in cl 8.2 and in Part 8 of PLEP.

43. The objective of cl 8.2 is broadly stated as being “to protect public open space from overshadowing” (cl 8.2(1)). There is no warrant to read this objective down so as to protect only public open space identified as being within the Penrith City Centre and not public open space generally from overshadowing by development on land in the Penrith City Centre.

44. Clause 8.1’s application of the Part to land identified as Penrith City Centre in the Clause Application Map is explicable having regard to the structure and operation of cl 8.2(3). It is only land on which development is to be carried out that must be “land to which this Part applies”, which is the land identified in cl 8.1, and not public open space overshadowed by development on that land.

45. The heading to Part 8, “Local provisions - Penrith City Centre” equally refers to the land to which the Part applies, which is land identified as Penrith City Centre on which development is to be carried out. Clause 8.7 of PLEP does not assist in the interpretation of cl 8.2, for the reasons given by the Council.

46. Finally, the subjective intention of the Council in proposing the amendment of cl 8.2 is of no assistance: Liverpool City Council v Moorebank Recyclers Pty Ltd at [128]. Consideration of the Council’s planning proposal as an extrinsic material is not enabled by s 34 of the Interpretation Act as that section does not apply to environmental planning instruments such as PLEP (s 5(6) of the Interpretation Act).

47. However, even if consideration were to be given to the Council’s planning proposal, the Council’s explanation of the amendments is equivocal. The Council’s statement that the amendment to cl 8.2 “will protect all public open space in the Penrith City Centre” from overshadowing did not mean that the amendment would not also protect public open space adjacent to the Penrith City Centre from overshadowing. The Council’s statement was not exhaustive of the operation of the clause if it were to be amended as proposed. Clause 8.2 as originally made only applied to specified public open space in the Penrith City Centre. The amendment of cl 8.2, however, broadened the application of cl 8.2 to all public open space. The amendment did not limit the public open space to being within the Penrith City Centre.

48. For these reasons, the Commissioner did not err on a question of law in her construction and application of cl 8.2 of PLEP. I reject grounds 1 and 2.

The clause 8.4 grounds

49. Grounds 3 and 4 concerns cl 8.4 of PLEP. Ground 3 contended that the Commissioner failed to have regard to the relevant matters enumerated in cl 8.4(2) in deciding that the development did not exhibit design excellence. Ground 4 contended that the Commissioner failed to consider the findings of the Design Integrity Panel, which Toga contended the Commissioner was required by cl 8.4(3) to do, in deciding whether the development exhibited design excellence.

50. Clause 8.4 of PLEP sets two jurisdictional preconditions, one in subclause (1) and the other in subclause (3).

51. Clause 8.4(1) provides:

“Development consent must not be granted for development involving the construction of a new building, or external alterations to an existing building, on land to which this Part applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.”

52. Clause 8.4(2) specifies matters that the consent authority must consider in deciding whether the proposed development exhibits design excellence:

“In deciding whether development to which this clause applies 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 will detrimentally impact on view corridors,

(d)    (Repealed)

(e)  how the development will address 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 buildings (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, circulation and requirements,

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

53. Clause 8.4(3) sets the second precondition requiring the holding of an architectural design competition:

“Development consent must not be granted for any of the following development on land to which this Part applies unless an architectural design competition has been held in relation to the development—

(a) development in respect of a building that is, or will be, greater than 24 metres or 6 storeys (or both) in height,

(b) development that has a capital value of more than $1,000,000 on a key site identified on the Key Sites Map,

(c) development for which the applicant has chosen to have an architectural design competition.”

54. An “architectural design competition” is defined in cl 8.4(7):

“architectural design competition means a competitive process conducted in accordance with procedures approved by the Director-General from time to time.”

The alleged failure to consider the matters in cl 8.4(2)

55. The Commissioner made two sets of findings that are challenged by the parties. The first was that the proposed development did not exhibit design excellence. The Commissioner’s conclusion at [148] was brief:

“Having regard to the evidence and the planning controls relevant to the site, I cannot conclude, despite contrary conclusions of the Competition panel, that the development in the current form demonstrates design excellence. Accordingly, for that reason, consent cannot be granted.”

56. Toga contended that the Commissioner, in forming this opinion, did not have regard to all of the matters of relevance to the development in cl 8.4(2) of PLEP. This was ground 3 of Toga’s appeal. The Commissioner did acknowledge (in [143]) that:

“In deciding whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the matters listed in subclause (2).”

57. But Toga submitted the Commissioner failed to do so. The Commissioner’s reasons for her opinion expressed in [148] are set out in [144]-[147]:

Having regard to the Urban Design evidence in particular, I prefer the evidence of Ms Morrish. In this regard, there are a number of elements that I agree do not exhibit design excellence. In particular the design, materials and treatment of the podium carparking levels, the lack of interface between that podium and the planned ‘eat street’ along John Tipping Grove, and that poor amenity within the public domain that will result because that important interconnection will not occur.

I also agree that the number of ramps necessitated through the provision of the podium parking levels compromised active streetscapes along Union Road and the N/S Road.

The late amendment to the application in removal of the small commercial building, whilst not discussed in evidence, resulted in exposure of the sides of a newly completed apartment building without regard for other methods of improving the streetscape in this location. Whilst alone, this would not be a reason to conclude the development does not exhibit design excellence, it is an area that needs proper resolution. The two level commercial building originally proposed did not address that streetscape issue. I accept that this is an issue that arises from the earlier approval for this building failing take into account the future road link.

The podium level carparking, in particular the unbroken length results in excessive bulk and massing without appropriate modulation and the street wall height of this important building element, particularly because of its importance and prominence in relation to the ‘eat street’ along John Tipping Grove.”

58. Toga submitted that on their face these reasons failed to exhibit any engagement with the mandatory relevant considerations in cl 8.4(2). The substance of the Commissioner’s reasoning was simply that she “preferred the evidence of Ms Morrish”, the Council’s urban design expert (at [144]). But that preference for the evidence of Ms Morrish did not reveal that the Commissioner considered each of the matters in cl 8.4(2).

59. Toga submitted that a subjective jurisdictional fact decision will be infected by legal error if the decision maker fails to consider matters which the decision maker must consider: Australians for Sustainable Development Inc v Minister for Planning (2011) 182 LGERA 370; [2011] NSWLEC 33 at [232]-[234]. Here, the Commissioner made an error of law because she did not form her view about whether the proposed development “exhibits design excellence” having regard to the matters that the statutory scheme required her to consider.

60. The Council contested that Commissioner did not consider the relevant matters in cl 8.4(2) of PLEP in forming her opinion that the proposed development did not exhibit design excellence.

61. First, the Council noted that the Commissioner was conscious of the terms of cl 8.4(2) of PLEP, having quoted the whole of cl 8.4 in [24] and recorded the obligation to have regard to the matters in cl 8.4(2) in [143] of the judgment.

62. Secondly, the Commissioner considered those matters by her consideration of the evidence given in the case, especially the evidence of the urban design experts (in [70]-[94]). The Commissioner expressed a preference for the evidence of the Council’s urban design expert, Ms Morrish: at [144] of the judgment. Having regard to the urban design evidence, and her preference for the evidence of Ms Morrish, the Commissioner summarised in [144]-[147] her reasons for forming the opinion at [148] of the judgment that the proposed development did not exhibit design excellence.

63. The Council submitted that these reasons reveal that the Commissioner considered that the following elements of the proposed development did not exhibit design excellence:

“(a) the design, materials and treatment of the podium carparking levels;

(b) the lack of interface between that podium and the planned ‘eat street’ along John Tipping Grove;

(c) poor amenity within the public domain that will result because that important interconnection would not occur;

(d) the number of ramps necessitated through the provision of the podium parking levels comprised active streetscapes along Union Road and the N/S Road;

(e) the removal of a small commercial building resulted in the exposure of the sides of the newly completed apartment building without regard for other methods of improving the streetscape in this location; and

(f) the podium level carparking, in particular the unbroken length results in excessive bulk and massing without appropriate modulation in the street wall height of this important building element, particularly because of its importance and prominence in relation to the ‘eat street’ along John Tipping Grove.” (paragraph 15 of the Council’s written submissions).

64. The Council submitted that, having formed the opinion for the reasons given, there was no legal requirement for the Commissioner to list each relevant matter in cl 8.4(2) and then consider the proposed development against that list. The Council noted that Toga has not identified which of the matters in cl 8.4(2) the Commissioner was said to have failed to consider.

65. Finally, the Council submitted that, even if the Commissioner were to be shown to have failed to consider one or more of the relevant matters in cl 8.4(2), Toga bears the onus of demonstrating that such error of law was material to the decision ultimately made by the Commissioner (Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; (2014) 200 LGERA 375; [2014] NSWCA 105 at [195]), such that there was a realistic possibility that the decision could have been different (MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [2]).

66. The Council submitted that, given the Commissioner’s firm and conclusive views, “it is impossible to conceive that she would have come to any different view as to whether the proposed development exhibits design excellence as required by cl 8.4(1)” (paragraph 19 of the Council’s written submissions).

67. Toga replied, joining issue with the Council’s submission that there was no need to list and consider each relevant matter in cl 8.4(2) of PLEP. Toga noted that Moore J in Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126 at [58], [62]-[64], [73], held that a Commissioner, exercising the function of a consent authority on appeal, would usually need to consider each of the matters listed in a clause equivalent to cl 8.4(2). In the present case, on the face of the Commissioner’s reasons, the Commissioner failed to consider each of the relevant matters in cl 8.4(2).

68. Toga submitted that the Commissioner’s error was material. The test is not whether the Commissioner “would have come to any different view”, as Toga submitted, but whether there is a “realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred”: MZAPC v Minister for Immigration and Border Protection at [2], [39].

69. Toga submitted that in the present case, cl 8.4(2) provides a detailed framework by which the Commissioner was required to form the opinion in cl 8.4(1) as to whether the proposed development exhibits design excellence. Given that this framework was not followed at all, Toga submitted that there is no doubt that the Commissioner’s decision could have been different if the framework had been followed.

70. I uphold ground 3 of Toga’s appeal. I find that the Commissioner did fail to consider the relevant matters in cl 8.4(2) of PLEP in deciding whether the proposed development exhibited design excellence. It was not sufficient for the Commissioner to form the opinion that the proposed development did not exhibit design excellence or to do so having had regard to the evidence of the urban design experts, including their evidence on elements of the proposed development that did not exhibit design excellence. Clause 8.4(2) prescribes a framework for deciding whether a development exhibits design excellence. The Commissioner did not follow that framework.

71. As I have earlier noted, cl 8.4(1) establishes a jurisdictional fact – an essential criterion – that must be satisfied in order to enliven the power to grant development consent to development to which cl 8.4 applies. This jurisdictional fact is the opinion of the consent authority that the proposed development exhibits design excellence.

72. Clause 8.4(2) prescribes the matters to which a consent authority must have regard in deciding whether the proposed development does or does not exhibit design excellence. An opinion that the proposed development does or does not exhibit design excellence, which is formed without having regard to the matters prescribed in cl 8.4(2), will not be an opinion for the purposes of cl 8.4(1).

73. The matters in cl 8.4(2) are framed in particular language, not as general topics but instead as outcomes or objectives to be achieved. The statutory obligation to “have regard to” these matters requires having regard to the particular terms in which the matters are expressed and not just the general topics that are the subject of the matters. The particular terms in which the matters in cl 8.4(2) are expressed serve as focal points for, and fundamental elements in, the consent authority deciding whether or not the proposed development exhibits design excellence under cl 8.4(1): see analogously Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167 at [72], [73], [77].

64. Thus, consideration of the matter in paragraph (a) of cl 8.4(2) requires answering the particular question posed – whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved – and not merely considering what are the architectural design, materials and detailing of the development. Consideration of the matter in paragraph (b) requires answering the particular question posed – whether the form and external appearance of the development will improve the quality and amenity of the public domain – and not merely considering what are the form and external appearance of the development. Consideration of the matter in paragraph (c) requires answering the particular question posed – whether the development will detrimentally impact on view corridors – and not merely considering any view impacts of the development. Consideration of the multiple matters in paragraph (e) requires answering each of the particular questions posed – how the development will address each of the matters listed in subparagraphs (i) to (x) – and not merely considering the topics of those matters.

65. The Commissioner failed to have regard to the particular terms of and answer the particular questions raised by the matters in cl 8.4(2). Rather, the Commissioner substituted for the statutory requirements a different approach of merely considering the evidence of the urban design experts on the general topic of whether the proposed development exhibited design excellence. A review of the Commissioner’s summary of the urban design experts’ evidence in [70]-[94] of the judgment reveals that the experts did not themselves address the matters in cl 8.4(2) by having regard to the particular questions raised by those matters. The Commissioner’s consideration of that evidence, and her express preference for the evidence of Ms Morrish, suffered the same shortcomings. The findings the Commissioner made in [144]-[148] of the judgment reveal that the Commissioner did not address the particular terms of and answer the particular questions raised by the matters in cl 8.4(2), but instead substituted for the statutory requirements her own approach. By adopting this approach, the Commissioner proceeded on an impermissible basis: see analogously Zhang v Canterbury City Council at [76].

66. The Commissioner’s error of law is material to her opinion that the proposed development did not exhibit design excellence. The Commissioner’s opinion was formed by the Commissioner failing to have regard to the matters in cl 8.4(2) in the manner required. It is a realistic possibility that the Commissioner’s opinion could have been different had the Commissioner not failed to have regard to the matters in cl 8.4(2) as required.

67. Nevertheless, this error of law is not material to the Commissioner’s ultimate decision to refuse development consent. Whilst cl 8.4(1) sets one jurisdictional precondition to the grant of consent, cl 8.2(3) sets another jurisdictional precondition to the grant of development consent. As I have found that Toga has not established that the Commissioner erred in finding that the precondition in cl 8.2(3) was satisfied, development consent may not be granted to the development by reason of cl 8.2(3).

The alleged failure to consider the Design Integrity Panel’s views

78. The second set of findings by the Commissioner challenged by the parties concerned cl 8.4(3) of PLEP. As I have earlier noted, cl 8.4(3) precludes the grant of development consent for development on land to which Part 8 applies, identified as Penrith City Centre, unless an architectural design competition has been held in relation to the development.

79. There was no dispute that an architectural competition had been held. What was in dispute was whether that competition had been held “in relation to the development” that was the subject of the development application before the Court. Toga said that it did relate, but the Council said that it did not relate to that development.

80. The Commissioner held that an architectural design competition had been held in relation to the development: at [161] for the reasons given at [158]-[160] of the judgment. Toga did not challenge this finding in its appeal, but the Council did. The Council raised a notice of contention that the Commissioner erred in finding that an architectural design competition had been held in relation to the particular development that was the subject of the appeal before the Commissioner. I will deal with this notice of contention later.

81. For the purposes of Toga’s appeal, the relevance of the holding of an architectural design competition was that it led to the establishment of a Design Integrity Panel. This Design Integrity Panel expressed views on the design excellence of the proposed development. Toga submitted that the Commissioner was obliged to have regard to the Design Integrity Panel’s views in deciding whether the proposed development exhibited design excellence. This was ground 4 of Toga’s appeal.

82. Toga noted that the term “architectural design competition” is defined in cl 8.4(7) to mean “a competitive process conducted in accordance with procedures approved by the Director-General from time to time”. The procedures that have been approved by the Director-General are the “Director General’s Design Excellence Guidelines”. Those Guidelines not only specify the process for holding the architectural design competition, they also make provision for continuing assessment after the architectural design competition has been held.

83. In the section titled “Post Competition Process”, under the heading “Design Integrity”, the Guidelines state:

“To ensure that design quality continues from the development application stage through construction drawings and into physical completion of the building the competition jury will recommend a process to monitor design integrity.

Generally, this will require the designer of the winning submission be nominated as the design architect. In some cases, the Jury may recommend a Design Integrity Panel monitor design excellence.

Certification that the design is substantially the same and retains the design excellence exhibited in the winning submission will be required at key project milestones, including lodgement of the DA, issue of construction certificate and at completion of the project.” (p 4 of the Guidelines).

84. Toga noted that, in accordance with this post competition process, the Jury for the architectural design competition recommended, by letter dated 14 March 2018, that the Jury “maintain reviews of the design progression following lodgment of the DA at critical milestones”. The Jury thereafter became the Design Integrity Panel responsible for monitoring whether the proposed development, as amended from time to time, continued to exhibit design excellence.

85. Toga noted that at multiple stages during the amendment of the development, the Design Integrity Panel expressed the view that the proposed development continued to exhibit design excellence:

1. In the letters dated 6 March 2020 and 11 May 2021, the Design Integrity Panel stated: “It is acknowledged that the evolution of the proposed design since completion of the Competition in November 2017 has been significant. However, the Design Integrity Panel has reviewed these revisions and considers that the proposed development still exhibits design excellence as outlined in clause 8.4(2) of Penrith Local Environmental Plan 2010.”

2. In the email dated 19 February 2021, the Design Integrity Panel Chair stated: “As discussed this morning, the project has followed good design excellence practice by retaining the Design Competition Jury members for the Design Integrity Panel. Based on the documentation presented by the proponent during design development, the DIP was satisfied design excellence had been achieved.”

3. In the letters dated 28 September 2021 and 10 November 2021, the Design Integrity Panel stated: “Overall, the amendments offer significant improvements which respond directly to design excellence considerations outline in our previous letter 11^th May 2021, and should moderate or eliminate residual concerns expressed by Council.”

86. Toga submitted that these views of the Design Integrity Panel concerning the design excellence of the development as amended were relevant matters to which the Commissioner was bound to have regard in deciding whether the development exhibits design excellence. Toga argued that the views of the Design Integrity Panel were relevant matters by implication from the statutory scheme in Part 8 of PLEP. The jurisdictional preconditions in cl 8.4(3) and cl 8.4(1) are related. The holding of an architectural design competition in relation to a development on land in the Penrith City Centre under cl 8.4(3) promotes the design excellence of the development for the purposes of cl 8.4(1). The architectural design competition required by cl 8.4(3) must be conducted in accordance with the Guidelines, which are the procedures approved by the Director-General under cl 8.4(7). The Guidelines prescribe procedures not only for holding the architectural design competition but also the post competition process. Under the post competition process, the Jury may recommend a Design Integrity Panel to monitor design excellence. If this post competition process is followed, Toga submitted that the views of the Design Integrity Panel on the design excellence of the development will be relevant in deciding under cl 8.4(1) whether the development exhibits design excellence.

87. Toga submitted that the Commissioner failed to consider the views of the Design Integrity Panel in this case. The Commissioner’s conclusion at [148] that she was not satisfied that the development in its current form demonstrates design excellence “despite contrary conclusions of the Competition panel”, did not demonstrate consideration of the Panel’s views, but rather was merely an acknowledgment that the Commissioner was taking a different view to the Panel. “Consideration” of the Panel’s views required engaging in an active intellectual process: DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375; [2021] HCA 12 at [12], [77]. The Commissioner did not engage in such a process.

88. The Council disputed Toga’s argument on ground 4 legally, factually and on materiality.

89. Legally, the Council submitted that the views of the Design Integrity Panel were not a relevant matter that the Commissioner was bound to consider. Clause 8.4 of PLEP does not oblige, either expressly or impliedly, the consent authority to consider the views of any Design Integrity Panel that might be established in deciding whether the development exhibits design excellence for the purposes of cl 8.4(1) of PLEP. The clause expressly prescribes in cl 8.4(2) the matters to which the consent authority must have regard in deciding whether the development exhibits design excellence for the purposes of cl 8.4(1). The matters prescribed in cl 8.4(2) do not include the views of the Jury for the architectural design competition held under cl 8.4(3) or any Design Integrity Panel established after the architectural design competition has been held. That is not to say that it would be impermissible for the consent authority to have regard to the views of the Jury or the Design Integrity Panel, only that it is not mandatory for the consent authority to do so.

90. Factually, the Council submitted that the Commissioner took the views of the Design Integrity Panel, as expressed in the letters and emails referred to by Toga, into account in her judgment. The Commissioner referred to and summarised the contents of the Design Integrity Panel’s letters and email in [55]-[61] of the judgment, as well as noting aspects of the Design Integrity Panel’s views at [93], [116] and [159] of the judgment. It is in this context that the Commissioner’s conclusion at [148] that the development does not exhibit design excellence needs to be considered. The Commissioner’s statement that she had formed her conclusion “despite contrary conclusions of the Competition panel” is not merely an acknowledgment of the Design Integrity Panel’s views to the contrary of her conclusion, as Toga submitted, but rather builds on her earlier analysis of the Design Integrity Panel’s views. This early analysis, coupled with the later conclusion, revealed the Commissioner did engage in an active intellectual process.

91. As to materiality, the Council submitted that, even if there were to be some failure to consider the views of the Design Integrity Panel, “it is inevitable that the same decision would have been reached on the basis of the conclusive findings the Acting Commissioner made at J [144]-[148]” (paragraph 23 of the Council’s written submissions).

92. I reject Toga’s ground 4. The views of the Design Integrity Panel on the design excellence of the proposed development as amended were not a relevant matter that the Commissioner was bound to take into consideration in deciding whether the development, in the amended form before the Commissioner, exhibits design excellence for the purposes of cl 8.4(1). Although it was permissible for the Commissioner to consider the views of the Design Integrity Panel, as she did in fact do, it was not mandatory for her to do so.

93. The matters the consent authority is bound to consider in deciding whether a proposed development exhibits design excellence for the purposes of cl 8.4(1) are to be ascertained by construction of cl 8.4 of PLEP. Clause 8.4(2) expressly states the matters to which the consent authority must have regard in deciding whether the development exhibits design excellence. These expressly enumerated matters do not include the views of the Jury of any architectural design competition held for the purposes of cl 8.4(3) or any Design Integrity Panel that might be established after the architectural design competition has been held.

94. As observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39: “If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.”

95. Here, the directive in cl 8.4(2) of PLEP that: “In deciding whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters…”, is a strong indicator that the matters expressly enumerated in cl 8.4(2) are exhaustive of the matters the consent authority is obliged to take into account in deciding whether the proposed development exhibits design excellence for the purposes of cl 8.4(1). The consent authority may consider other matters, but is not obliged to consider these other matters.

96. If the expressly enumerated matters in cl 8.4(2) are not exhaustive of the matters the consent authority is obliged to consider, but are merely inclusive, any other relevant matters which the consent authority is bound to consider must be determined by implication from the subject matter, scope and purpose of cl 8.4 of PLEP: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40.

97. In the present case, the views of the Design Integrity Panel on the design excellence of the proposed development are not matters which, by implication, the Commissioner, exercising the function of the consent authority, was bound to take into consideration in deciding whether the proposed development exhibits design excellence.

98. There can be, but need not be, an interrelationship between cl 8.4(1) and cl 8.4(3). Clause 8.4(1) will always apply to development to which cl 8.4 applies, but cl 8.4(3) will only apply if such development meets one of the criteria in cl 8.4(3). This was the case with the proposed development, but it will not always be the case. As a consequence, in deciding whether development to which cl 8.4 applies exhibits design excellence for the purposes of cl 8.4(1), the consent authority may or may not have available to it the views of either a Jury of an architectural design competition or a Design Integrity Panel established after an architectural design competition has been held, depending on whether an architectural design competition was required by cl 8.4(3) to be held. This is an indicator against the views of a Jury or Design Integrity Panel being a matter which, by implication, the consent authority is obliged to consider in deciding whether the proposed development exhibits design excellence for the purposes of cl 8.4(1).

99. If an architectural design competition is required to be held by cl 8.4(3), and is held, the only necessary outcome will be the Jury’s decision. An architectural design competition required by cl 8.4(3) must be conducted in accordance with the procedures approved by the Director-General (see cl 8.4(7)). The Guidelines are the procedures approved by the Director-General for holding an architectural design competition. The Guidelines prescribe the architectural design competition process that must be conducted. This process culminates in the Jury’s decision, which is recorded in a Design Competition Report.

100. The Design Competition Report is required to, amongst other things, “present the Jury’s decision, including the rationale for the choice of a nominated design and how this exhibits design excellence” and “outline any recommended design amendments or propose conditions of development consent that are relevant to the achievement of design excellence” (p 3 of the Guidelines).

101. The Jury’s decision and the Report is the culmination of the architectural design competition held under cl 8.4(3) and (7). But there is no requirement in cl 8.4(3) or (7) for the consent authority to consider the Jury’s decision and the Report. The statutory requirement is simply than an architectural design competition that is required by cl 8.4(3) to be held, is in fact held. Nevertheless it would be permissible for a consent authority to consider the Jury’s decision and the report of any architectural design competition that has been held.

102. But any post architectural design competition process stands in a different position. It has no statutory basis. Clause 8.4(3) only requires the holding of an architectural design competition for development to which cl 8.4(3) applies. The term “architectural design competition” is defined in cl 8.4(7) to be the competitive process conducted in accordance with procedures approved by the Director-General. The Guidelines prescribe that competitive process. This competitive process culminates in the Jury’s decision and the Design Competition Report. At this juncture, the architectural design competition has been held. Whatever process might occur after the competitive process has concluded with the Jury’s decision and the Report is not part of the architectural design competition. It matters not that the Guidelines discuss the post competition process. Such post competition process is not part of the competitive process for the architectural design competition prescribed by the Guidelines.

103. There can be no implication from the terms of cl 8.4(3) or (7), or the Guidelines prescribing the competitive process by which the architectural design competition must be conducted, that anything that occurs after the architectural design competition has been held is a relevant matter that the consent authority is obliged to consider. This is especially the case for any views of a Design Integrity Panel. The post competition process discussed in the Guidelines does not require the establishment of a Design Integrity Panel. The Guidelines only state that: “In some cases, the Jury may recommend a Design Integrity Panel monitor design excellence”. That recommendation may or may not be accepted. The result may be that a Design Integrity Panel is only established in a limited number of cases. This is an indicator against any implication that the views of a Design Integrity Panel monitoring design excellence is a matter that the consent authority is obliged to take into consideration.

86. For these reasons, I find that the views of the Design Integrity Panel concerning the design excellence of this proposed development is not a matter that the Commissioner, exercising the functions of a consent authority, was obliged, either expressly or impliedly, to take into account in deciding whether the development exhibits design excellence for the purposes of cl 8.4(1) of PLEP.

87. In any event, Toga has not established, as a matter of fact, that the Commissioner failed to take into account the views of the Design Integrity Panel, as expressed in the letters and email to which Toga referred. The Commissioner expressly referred to and summarised the contents of these letters and email in her judgment, including in [55]-[61], [93], [116] and [159]. The Commissioner acknowledged in [148] that those views of the Design Integrity Panel were contrary to her opinion. Together, this analysis and conclusion reveal that the Commissioner engaged in an active intellectual process of considering the views of the Design Integrity Panel.

88. Toga has not, therefore, established, either legally or factually, that the Commissioner failed to consider a relevant matter concerning the views of the Design Integrity Panel. I reject ground 4.

Notice of contention

107. The Council sought by its notice of contention to affirm the Commissioner’s decision to refuse development consent to the development on the ground that the jurisdictional precondition in cl 8.4(3) of PLEP had not been satisfied, contrary to the Commissioner’s findings.

108. The jurisdictional precondition in cl 8.4(3) is that an architectural design competition has been held “in relation to the development”. The development referred to at the end of the chapeau to the subclause, in relation to which an architectural design competition has to be held, is development of the type referred to at the start of the chapeau to the subclause, “any of the following development”, which in turn refers to development of any of the types referred to in paragraphs (a), (b) or (c) of the subclause. The prohibition on the grant of development consent operates in relation to development that has not been the subject of an architectural design competition. Development consent must not be granted to development in relation to which an architectural design competition is required to be held but which has not been held.

109. The Council contended that the subclause thereby establishes a requirement that the development the subject of the architectural design competition and the development for which development consent is sought must be the same or at least substantially the same, otherwise the jurisdictional precondition cannot be satisfied.

110. The Council submitted that this construction of cl 8.4(3) is corroborated by the Guidelines, being the procedures approved by the Director-General in accordance with which the architectural design competition is to be conducted (see cl 8.4(7) of PLEP). In the section on the post competition process, under the heading “Request for Review”, the Guidelines note that in the event that “the consent authority considers the project submitted for approval (or as subsequently modified) to be substantially different” to the development that the Jury of the architectural design competition decided was the winning submission, “either the proponent or the consent authority may request that the Jury reconvene and make a recommendation as to what further competitive processes or requirements would be necessary to permit an alternative or revised design to satisfy the design excellence provisions of the LEP” (p 4 of the Guidelines).

111. The Council submitted that the Guidelines thereby acknowledge the need for the development the subject of the architectural design competition to be the same or substantially the same as the development for which development consent is sought. If the development “submitted for approval” is “substantially different” to the development in relation to which the architectural design competition has been held, “further competitive processes or requirements”, such as another architectural design competition, would be necessary.

112. The Commissioner did not accept this construction of cl 8.4(3) of PLEP. The Commissioner held at [160] that:

“There is no test on whether a development application when lodged has to be the same or substantially the same as the winning entry. What is important is that the proper process has been followed and, in this regard, I am satisfied that it has based on the evidence before me.”

113. In the belief that all that was required by cl 8.4(3) was that “the proper process has been followed”, the Commissioner looked to what process had in fact been followed and whether it was proper, which she summarised in [157]-[159], and concluded at [161] that “an architectural design competition has been held in relation to the development.”

114. The Council contended that in so approaching the jurisdictional precondition in cl 8.4(3), the Commissioner erred in her construction of cl 8.4(3) and asked herself the wrong question.

115. The Council submitted that had the Commissioner construed cl 8.4(3) correctly and asked herself the correct question of whether the development for which development consent was sought was the same or substantially the same as the development in relation to which the architectural design competition had been held, the Commissioner could only have found that the development for which development consent was sought was not substantially the same as the development in relation to which the architectural design competition had been held. The Council identified at least two sets of differences between the development.

116. First, the two developments related to different land and were for different uses:

“The 2017 design competition related to a single integrated development over the whole of the Toga land (now Lot 300), including the re-development of John Tipping Grove. The design brief makes clear that the subject-matter of the competition was the development for ‘the entire site’ (p.1881) for the purpose of the development of ‘an exemplar mixed-use community comprising of residential apartments, a potential 3-4 star hotel, retail and public domain’ (p.1878), which would include John Tipping Grove either ‘adapted for retail uses’ and/or ‘which could also relate to Council’s Public Benefit policy (Scheme 1)’ (p.1893). It is not just the fact that the competition related to development of a significantly larger piece of land than the subject DA. Rather, the subject-matter of the competition concerned a single integrated development over that larger development site which included the subject land.” (paragraph 29 of Council’s written submissions).

117. Next, the designs of the two developments were substantially different:

“On no rational view could it be said that the design of the buildings on the eastern site the subject of the DA is ‘substantially the same’ as the design the subject of the winning entry, comprising the single integrated site as shown on the plans at AB vol 4, tab 52. Even assuming that the comparison exercise is limited to the design of the development on the eastern part of the site, it is abundantly clear that the differences are so great, in terms of the essence of the development as well as potential impacts, that the Court is driven to the conclusion that the two designs are not ‘substantially the same’, eg:

(a) the changed alignment of the north-south road;

(b) the single long podium which now supports the two towers;

(c) the substantially increased massing on the eastern site;

(d) the substantial increase in height (eg 10 storeys on Building 2);

(e) the fundamentally altered design of Building 1;

(f) the exposure of the blank wall on the adjoining development to the east;

(g) three vehicular points of access instead of two;

(h) the differences between the sleeving of above ground parking; and

(i) the fact that basement parking was to be constructed below the road in the competition scheme but not in the DA design.” (paragraph 35 of Council’s written submissions).

118. The Council separately challenged the Commissioner’s finding that the proper process under the Guidelines had been followed. As earlier noted, the Guidelines provide that in the event that the consent authority considers the development for which development consent is sought is “substantially different” to the development in relation to which the architectural design competition has been held, the consent authority may request the Jury to reconvene and make a recommendation as to what further competitive processes would be necessary. The Council noted that despite the substantial changes to the development over time, this process never occurred – the Jury was never reconvened and no further competitive process was recommended or occurred. In these circumstances, the Council submitted that it was not open to the Commissioner to have held that the proper process as detailed in the Guidelines was followed.

119. Toga disputed both of the Council’s contentions. As to the first contention concerning the development, Toga submitted that the term “the development” at the end of the chapeau of cl 8.4(3), in relation to which an architectural design competition has been held, refers to the general character of the development and not its specific design. The term “development” bears the meaning it has in s 1.5 of the Environmental Planning and Assessment Act 1979 (EPA Act) to include the use of land, the erection of a building, the carrying out of a work and “any other act, matter or thing that may be controlled by an environmental planning instrument”.

120. On this basis, Toga submitted, it was open to the Commissioner to find that an architectural design competition had been held “in relation to the development”. The fact that the design of the development changed after the architectural design competition had been held did not materially alter the character of the development, which was at all times the same.

121. As to the second contention concerning the process, Toga noted that the Guidelines afford a discretion to the consent authority to request the Jury to reconvene and recommend what further competitive processes would be necessary (“may request”). However, it is open to the consent authority not to request the Jury to reconvene. In this case, the Council did not in fact request the Jury to reconvene.

122. Toga further noted that the Guidelines elsewhere contemplate that a design selected by the Jury following an architectural design competition may change and make provision for that situation. The Jury may recommend a Design Integrity Panel to monitor design integrity. The Design Integrity Panel can certify that a design is substantially the same and retains the design excellence exhibited in the winning submission. Toga noted that this is what occurred in this case. The Jury became the Design Integrity Panel and stated that the design of the amended development was substantially the same and retained the design excellence exhibited in the winning design.

123. Toga submitted that in these circumstances, the Commissioner was correct to find that the proper process under the Guidelines had been followed.

124. I uphold the Council’s first contention concerning the Commissioner’s construction of cl 8.4(3) but not the second contention concerning the Commissioner’s finding about the process for holding an architectural design competition.

125. As to the first contention, the Commissioner misconstrued cl 8.4(3) and asked herself the wrong question. The structure of cl 8.4(3) is to make the grant of development consent conditional upon satisfaction of the jurisdictional fact. The jurisdictional fact is the holding of an architectural design competition in relation to the development. The development to which reference is being made in the jurisdictional fact is the development that is the subject of the development application for which development consent is being sought. Development consent must not be granted to the development for which development consent is being sought unless an architectural design competition has been held in relation to that development.

126. This is an objective test. Unlike the jurisdictional fact required by cl 8.4(1), which is dependent on the opinion of the consent authority, the jurisdictional fact required by cl 8.4(3) does not depend on the opinion of the consent authority but rather requires the existence of a fact – the holding of an architectural design competition in relation to the development for which development consent is sought.

127. The consent authority does need to determine whether that jurisdictional fact is satisfied, but the test for determining whether the jurisdictional fact is satisfied is objective on the facts and not subjective as to the opinion of the consent authority. The fact either exists or it does not exist – the consent authority’s opinion as to whether it exists or not is not itself the test.

128. It may be accepted that questions of fact and degree do arise in determining whether the jurisdictional fact is satisfied. Some differences between the development in relation to which the architectural design competition has been held and the development for which development consent is sought might not cause the jurisdictional fact not to be satisfied, but other differences might do so. It will depend on the nature, extent and other features of the differences in the developments. Evidently, if there are substantial differences between the two developments, the jurisdictional fact will not be satisfied.

129. The satisfaction or non-satisfaction of the jurisdictional fact in cl 8.4(3) has nothing to do with the process by which the architectural design competition has been held in relation to the development. The latter is a distinct requirement to the jurisdictional fact. Clause 8.4(3) does require an “architectural design competition” to be held in relation to the development. The term “architectural design competition” is defined in cl 8.4(7) to be “a competitive process conducted in accordance with procedures approved by the Director-General from time to time”. The approved procedures are the Guidelines. If an architectural design competition is held otherwise than in accordance with the approved procedures of the Guidelines, it will not be an architectural design competition for the purposes of cl 8.4(3) and (7).

130. This requirement that the architectural design competition be conducted in accordance with the approved procedures of the Guidelines is a separate requirement to the requirement that such a competition be held in relation to the development for which development consent is sought.

131. The Commissioner failed to appreciate these separate requirements and instead conflated the two. While it is important that the proper process be followed, as the Commissioner found in [160] of the judgment, because this will ensure that the architectural design competition meets the requirements of cl 8.4(7), it is also important that such an architectural design competition has been held “in relation to the development” for which development consent is sought so as to meet the requirement of cl 8.4(3).

132. The Commissioner erred in finding at [160] that “there is no test on whether a development application when lodged has to be the same or substantially the same as the winning entry”. Clause 8.4(3) does require the development the subject of the development application to be the development in relation to which an architectural design competition has been held. In order for this test to be satisfied, the two developments will need to be the same or substantially the same.

133. This error in the approach of the Commissioner was material to the Commissioner’s finding that the jurisdictional fact in clause 8.4(3) had been satisfied. The Commissioner never asked the correct question. If she had, there is a realistic possibility that the decision she made could have been different. As the Council has explained, there are many and potentially significant differences between the development in relation to which the architectural design competition was held and the development for which development consent was sought before the Commissioner. There is a realistic possibility that an evaluation of these differences could have led the Commissioner to have concluded that the development for which development consent was sought was not the development in relation to which the architectural design competition was held.

134. As to the second contention about the process, the Council has not established that the architectural design competition that was held in relation to the development as then proposed was not conducted in accordance with the procedures approved by the Director-General in the Guidelines. As I have earlier noted, the Guidelines prescribe not only the procedures for conducting the architectural design competition but also the post competition process. The process for a consent authority to request the Jury to reconvene where the development the subject of the development application is substantially different to the winning design is part of the post competition process, not the competitive process by which the architectural design competition is required to be conducted. Hence, even if there were to have been a departure from this post competition process, that could not cause the architectural design competition to have been conducted otherwise than in accordance with the procedure approved by the Director-General for holding the architectural design competition. It is not necessary in these circumstances to determine whether there was in fact a departure from the post competition process in the Guidelines.

135. In these circumstances, the Council has not established that the Commissioner erred in finding that the architectural design competition that was held was conducted in accordance with the procedures approved by the Director-General.

Conclusion

136. Toga has not established grounds 1 and 2 of its appeal that the Commissioner erred in her construction and application of cl 8.2(3) of PLEP. The Commissioner’s finding that the jurisdictional fact in the subclause was satisfied therefore stands, precluding the grant of development consent to the development.

137. Toga has established ground 3 of its appeal that the Commissioner failed to consider the mandatory relevant matters in cl 8.4(2). The Commissioner’s finding that the proposed development does not exhibit design excellence is thereby impugned. This does not, however, enable development consent to be granted to the development. The Commissioner’s finding did preclude the grant of development consent by reason of cl 8.4(1) but even if the Commissioner were to reconsider on remitter the question of whether the proposed development exhibits design excellence, having regard to the relevant matters in cl 8.4(2), the non-satisfaction of the jurisdictional fact in cl 8.2(3) would remain and preclude the grant of development consent to the development.

138. Toga has not established ground 4 of its appeal that the Commissioner erred in law by failing to have regard to the views of the Design Integrity Panel in deciding that the development does not exhibit design excellence.

139. The Council has established the ground in its notice of contention that the Commissioner misconstrued cl 8.4(3) and asked herself the wrong question. The Council has not established the ground in its notice of contention that the Commissioner erred in finding that the architectural design competition that was held had been conducted in accordance with the procedures approved by the Director-General.

140. The upholding of the Council’s contention that the jurisdictional fact in cl 8.4(3) may not have been satisfied could result in a further impediment to the grant of development consent to the development. This would mean that the Commissioner’s decision to refuse development consent to the development, although made on the basis of the non-satisfaction of cl 8.2(3) and cl 8.4(1), would be affirmed on the basis of the non-satisfaction of cl 8.4(3).

136. In these circumstances, the overall decision of the Court should be to dismiss the appeal and uphold the notice of contention, thereby leaving the Commissioner’s decision and orders intact. Costs should follow the event.

137. The Court orders:

1. The appeal is dismissed.

2. The notice of contention is upheld.

3. The appellant is to pay the respondent’s costs of the appeal and the notice of contention.

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Amendments

12 September 2022 - Correction to typographical error at [65].

Decision last updated: 12 September 2022