The proposal satisfies the urban form, design, scale and architectural objectives and controls of Mascot Station Precinct DCP.
25 The council officer's report assessing the development application (Exhibit 2) recommended approval on the basis that there would be compliance with C98. He stated:
The applicant has advised in the submitted Statement of Environmental Effects that the undergrounding of the cables will be carried out as part of the development. This will also be conditioned as part of the development consent.
26 The condition to which he referred became condition 38.
27 The application to the council to modify the consent by (inter alia) deleting condition 38 was dated 3 October 2006. By this time the development was well under construction. The modification application identified the applicant and the owner of the land as George Andrews, the applicant in these proceedings. The original applicant and land owners appear no longer to be involved. A solicitor's letter in support of the modification application invoked the Newbury tests of validity.
28 There is no evidence to suggest that in acquiring the site the applicant was unaware of the conditions of the development consent or unaware of the obligation to comply with C98 of the DCP or condition 38. There is nothing to suggest that the price paid for the land did not reflect the cost of fulfilling the obligations under the development consent including C98. The applicant did not give evidence. The transcript indicates that the Commissioner accepted that the developer, in making decisions to construct the building, would have budgeted on the cost of complying with condition 38.
The Proceedings before the Commissioner
29 The Commissioner found that in the original development application the applicant intended to provide for the undergrounding of overhead service cables: judgment [11]. The evidence before the Commissioner indicated that the undergrounding of overhead service cables in accordance with the DCP has been consistently required by the council in conditions of development consent in the Mascot Station Precinct; and that the cost of placing the overhead service cables underground under the council's proposed condition 38 would be about $573,000: judgment [23], [24].
30 The Commissioner relevantly expressed his conclusions as follows:
35 In my opinion the imposition of the respondent's alternative condition reflecting the requirement in the DCP that: at the full cost of the developer, all service cables in the street adjacent to … the … development site … would, in the circumstances of this development consent, be unreasonable. In applying the three Newbury tests to this condition I agree with Mr Fletcher [a planning expert who gave evidence] that at least one of the tests is not met.
36 Plainly the undergrounding of service cables is for a planning purpose that purpose being described in the DCP as including high-quality urban design. Despite this, one might question whether the identification of whoever should pay for the work as distinct from the actual undergrounding of the cables is of itself, a planning purpose.
37 The second of the Newbury tests is whether the respondent's alternative condition, in the circumstances of this modification application, reasonably and fairly relates to the development under consideration. In my opinion the requirement for the developer to be wholly responsible for all of the undergrounding of service cables in the streets adjacent to the site would be neither fair nor reasonable. I have reached this conclusion taking into account the agreement between the experts that the public is the primary beneficiary of underground cabling. I also understand that the electricity and telecommunications cables in O'Riordan Street are not directly utilised by the development. In addition the properties immediately opposite the site would obtain, at no cost, the aesthetic benefit of not looking out onto overhead cables.
38 Whilst the site itself will obtain a significant aesthetic benefit, and notwithstanding that it benefits from the undergrounding of cables that has occurred elsewhere, this is but a proportion of the combined benefits available to the community at large and the properties opposite. In the circumstances I cannot accept that the burden of carrying the entire responsibility associated with this site's frontages fairly and reasonably relates to the benefit that it receives, especially by comparison with the benefit received by the community at large, including that part of the community that will come to and pass through the Mascot Station Precinct.
39 I thus conclude that the burden associated with the responsibility of undergrounding all of the overhead cables would be disproportionate to the benefit that would accrue to the site and hence the condition does not reasonably and fairly relate to the development under consideration.
40 For similar reasons to those I have applied to the second Newbury test I accept that, in relation to the third test, that a condition to this effect would not be reasonable. Hence, on the basis of the Newbury tests I would not impose the respondent's alternative condition because, despite the requirement of the DCP and the weight that it attracts, the burden of requiring the applicant to carry out the all of the works at its expense would be unreasonable.
41 The evidence provided in these proceedings does not enable me to determine, on the basis of benefits accruing to the site, what would be a reasonable proportion of the costs of undergrounding the overhead cables that should be borne by the applicant. However taking into account the likely benefits accruing to the development by comparison with the benefits to the community at large and to the properties opposite it seems to me that in these circumstances, the applicant's proposed alternative condition would be reasonable and can be imposed as an amendment to the consent.
…
45 Also, in relation to the merits consideration of the application I was referred to the discretionary consideration that the acceptance of the benefits of a development consent can weigh heavily against a modification application that seeks to remove the burden of a particular condition. (See Arkibuilt ). Whilst there is little doubt that the applicant originally intended to [sic] underground existing overhead cables, in my opinion the burden of the applicant's alternative condition, considered in its entirety and accepting the differences, is not so different to that of the original condition as to warrant the rejection of the application.
46 Finally, I do not accept the respondent's concern that the upholding of this appeal would set an inappropriate precedent that might affect the integrity of the DCP because of the particular circumstances of this case. Any challenge to a condition of consent that relies on the provisions of the DCP would need to be assessed on its own merits.