Council of the City of Sydney v NFF at 410 Pitt Street Pty Ltd

Land and Environment Court (NSW)|2016-10-26|Before: Pain J

SOLICITORS: Council of the City of Sydney (Applicant) Mills Oakley (Respondent) File Number(s): 16/183500 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: NFF at 410 Pitt Street Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1181 Date of Decision: 19 May 2016 Before: O'Neill C File Number(s): 10752 of 2015

Judgment

The Council of the City of Sydney (the Council) has commenced this appeal under s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) in relation to the decision of a commissioner (NFF at 410 Pitt Street Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1181) to approve a stage 1 building envelope for a hotel development. The subject site is narrow and located at 410 Pitt Street Haymarket.
The Respondent's (NFF at 410 Pitt Street Pty Ltd) development application approved by the Commissioner allows the demolition of the existing building and the stage 1 building envelope for a 31 level structure set back from Pitt Street by 8m. The proposal is for 178 indicative hotel rooms and a ground floor café. It was not in dispute that the proposed building will abut its neighbours until a height of RL 60.479, approximately 14 levels. Above that the building is set back 1.272m from the northern boundary and 3.5m from the rear to the east. There is nil setback proposed from the southern boundary with 412 Pitt Street. The overall height of the proposed building is RL 115.460, approximately 31 levels.
The site has an area of approximately 345m2 with a front boundary to Pitt Street of 6.445m. The site currently has a six level building on it. The site is located within Central Sydney, an area characterised by a mix of commercial and residential buildings. The scale of surrounding development ranges from two to three levels to 35 level residential towers.
The Miramar apartment building adjoins the site to the north at 398 Pitt Street. Development consent granted for it in October 1989 permitted building to the site boundary. In 1991 the Miramar development consent was modified to permit windows on the northern and southern façades of the building. The modification approval by the Council included an advisory note that stated that the approval to incorporate windows on the northern and southern façades would not prejudice future developments on adjoining sites. The Respondent's proposed building abuts the Miramar building up to RL 60.479 and is set back by 1.272m beyond that. To the south of the site are residential towers. Adjoining the site at 412 Pitt Street is a 13 level building with backpacker accommodation and ground floor retail.
I outlined the principles relevant to determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 at [7]. In summary, an appeal must identify a question of law explicitly or implicitly arising from a commissioner's judgment. That question must be sufficiently material that a wrong answer vitiates the decision. The merits of a commissioner's decision cannot be the subject of a s 56A appeal.
The summons identifies four grounds of appeal, all of which seek to impugn the Commissioner's approach to cl 6.16 of the Sydney Local Environmental Plan 2012 (the LEP).

Sydney Local Environmental Plan 2012

Clause 6.16 of the Sydney Local Environmental Plan 2012 (LEP) provides: 6.16 Erection of tall buildings in Central Sydney (1) The objectives of this clause are to ensure that tower development on land in Central Sydney: (a) provides amenity for the occupants of the tower and neighbouring buildings, and (b) does not adversely affect the amenity of public places, and (c) is compatible with its context, and (d) provides for sunlight to reach the sides and rear of the tower, and (e) promotes the ventilation of Central Sydney by allowing the free movement of air around towers, and (f) encourages uses with active street frontages. (2) This clause applies to development involving the erection of a building with a height greater than 55 metres above ground level (existing) on land in Central Sydney. (3) Development consent must not be granted to development to which this clause applies if the building is on land having a site area of less than 800 square metres unless the consent authority is satisfied that: (a) the building will have a freestanding tower each face of which will be able to be seen from a public place, and (b) the development will provide adequate amenity and privacy for occupants of the building and will not significantly adversely affect the amenity and privacy of occupants of neighbouring buildings, and (c) the ground floor of all sides of the building facing the street will be used for the purposes of business premises or retail premises.
"Central Sydney" is defined in the Dictionary to the LEP as an area of Sydney identified on the Locality and Site Identification Map attached to the LEP. Unusually in a statutory construction matter such as this, the context beyond cl 6.16 in the LEP is not necessary to address the grounds of appeal.

Evidence

The appeal book in two volumes was tendered as Exhibit A. It included the transcripts of the hearing, the statement of facts and contentions, and the evidence before the Commissioner relevant to these appeal proceedings. The separate and joint reports of the parties' town planning experts and plans of the proposed development prepared on behalf of the Respondent were contained in the bundle. The plans showed elevations and sections of the proposed building in relation to neighbouring buildings. The statement of environmental effects for the stage 1 development application dated May 2015 was included as well as submissions received by the Council during the assessment period.
The development consent granted to Meriton Apartments Pty Ltd on 26 October 1989 for the construction of the Miramar apartment building did not provide windows on the northern or southern façades. The development consent and the modification application granted on 25 October 1991 to permit windows in the southern and northern façades of the Miramar building and the accompanying advisory note referred to above in par 4 were included in Exhibit A.
Numerous photographs and computer generated images prepared by the Respondent's architects as part of the original view impact analysis of the proposal were annexed to the joint planning experts' report of Mr Sutherland and Mr Reynolds. The photographs showed the view from the southern facing windows and balconies of the Miramar apartments before the construction of the proposed development. The computer generated images showed the visual effect of the construction of the proposed development from the southern facing windows and balconies. The southern façade of the Miramar building has two windows per level with balconies in the south west and south east corners of each level. The computer generated images show the proposed building constructed approximately 1.2m away from the boundary. The proposed building has an impact on the views and outlook from the southern facing windows in the Miramar building.
The Respondent relied on the expert reports of two planning experts - Mr McNicoll for urban design, and Mr Reynolds for town planning. The Council relied on the report of Mr Sutherland town planner. Mr Sutherland conferred with each of the Respondent's experts and two town planning joint experts' reports were tendered in the proceedings. The joint report of Mr McNicoll and Mr Sutherland addressed the issue of whether "the proposal [is] a "freestanding tower" for the purposes of [LEP] cl 6.16(3)(a)." The joint report of Mr Reynolds and Mr Sutherland addressed all other town planning issues. Mr Reynolds and Mr Sutherland agreed in their joint report that at the time of the completion of the Miramar building, following the addition of the southern and northern windows, all of the southern boundary windows (levels 8 to 38) enjoyed an outlook and view to the south. They agreed that this outlook for levels 8 to 32 was subsequently blocked in circa 1999 following the erection of the Regis Towers at 414 Pitt Street. Mr Reynolds and Mr Sutherland agreed that the computer generated images prepared by the Respondent's architects discussed above in par 11 show that all southerly views from levels 33 to 36 will be lost, but the majority of the view currently enjoyed by levels 37 and 38 will remain.
Mr McNicoll's report included his opinion on the interpretation of cl 6.16 of the LEP. In his opinion the clause should be interpreted having regard to its legislative history and a discussion paper prepared in relation to the drafting of the previous LEP, Sydney Local Environmental Plan 2005 (2005 LEP). The equivalent provision in the 2005 LEP cl 50(2)(b) stated that any proposed development should achieve "(ii) a separation of any towers to achieve the 'tower in the round' built form characteristic". In Mr McNicoll's opinion this legislative history should be used to interpret cl 6.16 as requiring side and rear setbacks. As the proposed development does not have setbacks to the southern boundary and has only small to no setbacks from the northern boundary Mr McNicoll's opinion was that the "freestanding tower" requirement in cl 6.16(3) was not met.

The Commissioner's judgment

Extracts from the Commissioner's judgment relevant to the appeal grounds follow: Consideration Tower development on a small site … 26 Subclause 6.16(3) of LEP 2012 requires the subjective satisfaction of the consent authority that the (a) the building will have a freestanding tower, of which each face will be able to seen from a public place, and (b) the development will provide adequate amenity and privacy for the occupants and not significantly adversely affect the amenity and privacy of occupants of neighbouring buildings. The planning experts agreed that (c) is not in issue, as it is satisfied by the proposal. 27 In Mr McNicoll's view, it is necessary to understanding the evolution of this clause to fully appreciate the intention behind it, which is to preclude tower development on small sites in the city. I disagree with Mr McNicoll's interpretation of cl 6.16 of LEP 2012 because the clause should be construed in accordance with the general principles relating to statutory construction based on the instrument itself as made by the Council. 28 Dealing firstly with (a), there is no definition in the dictionary of LEP 2012 for freestanding tower. According to Mr McNicoll, a freestanding tower is a tower setback from its side and rear boundaries and according to Mr Sutherland, it is not necessary for a tower to have a setback on all sides as long as it is not attached to another adjacent structure. The Macquarie Dictionary defines freestanding as 'adj. Free of attachment or support, standing independently'. A tower or building that abuts its neighbour is not freestanding, because the two buildings touch and are not free of attachment, although they do not rely on their neighbour for structural support. To be freestanding, therefore, a tower must be physically isolated from any other structure adjacent. As the proposed tower will be structurally and physically independent of another building (above RL 60.479), I am satisfied that it is a freestanding tower for the purpose of cl 6.16 of LEP 2012. 29 Sub-clause (a) does not specify whether the entirety of 'each face' of the tower must be seen from a public place. Some portion of each façade of the tower will be seen from a public place; the western end of the northern façade will be visible from Pitt Street and part of the eastern end of the northern façade will be visible from public places to the north, including some vantage points in Goulburn Street; the western façade will be seen in its entirety from the public domain in Pitt Street and elsewhere; the southern façade will be seen above 412 Pitt Street and the eastern portion of the southern façade will be visible around the tower of 416-418 Pitt Street; and the eastern façade will be visible from vantage points in the public domain to the east. I am satisfied that for the purpose of sub-cl (a), that each face will be able to be seen from a public place, as what can be seen will give an adequate impression of the three dimensional tower within the proposed building envelope. 30 Dealing then with (b), the applicant submits that the development will provide adequate amenity and privacy for the occupants, as the daylight analysis establishes level of solar access within the tower and proposed hotel rooms that provides reasonable level of amenity to the hotel's patrons, in the absence of controls which regulate the amount of solar access or daylight required for hotel rooms. The Council presses the contention primarily in relation to the impact of the proposed building envelope on the residential amenity of adjoining development as being unacceptable and not in relation to the internal amenity of the hotel. On that basis, I accept the applicant's submission that the proposed building envelope will provide adequate amenity and privacy for the occupants of the hotel. 31 For the reasons set out below in relation to setbacks and the obstruction by the proposal of views from the windows on the southern façade of the Miramar Apartments, I am satisfied that the proposed building envelope does not significantly adversely affect the amenity and privacy of occupants of neighbouring buildings. 32 As Council has set the controls in sub-cl 6.16(3) as being those required to satisfy the objectives of the clause in (1), it is not necessary to deal individually with the objectives of the clause. Had Council wanted to provide additional control that furthered the objectives of the clause, they would have done so. There is nothing specifically raised by the objectives of the clause, not dealt with by the controls in (3), that would cause me to revisit those objectives now that I am satisfied that the proposal meets the requirements of sub-cl 6.16(3). Setbacks and impact of the proposal on the Miramar Apartments 33 The Council contends that the likely impacts of the proposal are not acceptable and the site is not suitable for the development. According to the Council's contention, the proposal is contrary to the promotion and co-ordination of the orderly and economic use and development of land, as it would serve to penalise the adjoining site at 412 Pitt Street in terms of redevelopment opportunities above the street wall, because it proposed a building envelope with nil or minimal side setbacks to the southern site boundary. The site is significantly constrained by the small size and narrow dimensions of the site and these constraints serve to limit the provision of a building envelope that would maintain acceptable levels of residential amenity to the adjoining development, making it unsuitable for a tower development. 34 There are two issues raised by this contention for the proposed building envelope; firstly whether the nil southern setback from the site boundary of the proposed building envelope above a height of 45m is acceptable (being the airspace above the existing building at 412 Pitt Street for the western portion of the southern elevation and the existing residential apartments at 416-418 Pitt Street for the eastern portion of the southern elevation); and secondly whether the 1.272m northern setback from the site boundary for the southern elevation of the Miramar Apartments constructed on the shared boundary is acceptable … Impact of the proposed building envelope on the southern elevation of Miramar Apartments 43 The planning experts agreed that the view loss from the windows in the southern façade of the Miramar Apartments affects only the upper levels of the Miramar Apartments from levels 33 to 36 and the leading edge of the proposed building envelope will be visible from level 37, because district views from the lower levels are obstructed by the Regis Towers. 44 There are two windows on each level of the southern façade of the Miramar Apartments on the upper levels. The southern façade is constructed on the shared boundary. On a typical level, there are two apartments on the southern side of the building, one in the south-east corner with an outlook to the rear of the site and one in the south-western corner with an outlook towards Pitt Street. Both apartments have a balcony at the southern corners of the Miramar Apartments. The windows provide significant amenity to the living room and on the upper levels there are sweeping district views from the windows in the southern façade, which include the clock tower of Central Station. 45 Importantly, in relation to the existing windows in the southern façade of the Miramar Apartments, the modification approval for the Miramar Apartments at 412 Pitt Street, Sydney, issued by City of Sydney Council in 1992 and modifying the consent of 26 October 1989, included the following in relation to the incorporation of windows in the southern façade of the development (exhibit 12): You are advised that the approval to incorporate windows on the northern and southern facades will not prejudice any future development on the adjoining sites with particular respect to construction at the northern and southern boundaries of the site. 46 In Meriton Properties Management Pty Ltd v Sydney City Council (2004) 140 LGERA 144 [42] (Meriton Properties), the then Senior Commissioner dealt with a similar issue in relation to a development application for the Stage 1 building design envelope of the Regis Towers to the south of this site, at 420-426 Pitt Street and 36-38 Campbell Street and the adjoining building to the north, the Pitt Tower, and held the loss of outlook from apartments on the southern side of the Pitt Tower was not a reason for refusing the application: Whatever the interpretation [of the poorly worded covenant requiring owners of adjoining property to block up windows at the Council's direction should the adjacent site be developed] a purchaser of those apartments would (or should) be aware that the windows to the south, being on or close to the boundary, are vulnerable. 47 I understand and am sympathetic to the distress of the residents in apartments with a window on the southern façade of the Miramar Apartments. I accept that it is possible that purchasers were not provided with an appropriate caveat emptor in relation to the windows in the southern façade constructed on the boundary, however I give determinative weight in relation to this issue to the fact that the information was available at Council and that it is clearly evident, when viewed from a southern window of the Miramar Apartments or from Pitt Street, that the southern wall of the Miramar Apartments is constructed on the property boundary, because the adjacent building on the site can be seen abutting the southern wall of the Miramar Apartments. I concur with the Senior Commissioner's reasoning in Meriton Properties in regard to the vulnerability of windows in a façade constructed on the boundary of the site. For these reasons, in so far as the contentions relate to impacts on amenity obtained by the inclusion of the windows in the southern façade of the Miramar Apartment, I accept the applicant's submission that the amenity of the Miramar Apartments borrowed from the undeveloped site should not reduce the building envelope otherwise able to be achieved on the site and that the loss of outlook from the adjacent apartments is not a reason for refusing the appeal. … Findings 73 As the proposed tower will be structurally and physically independent of another building, I am satisfied that it is a freestanding tower for the purpose of cl 6.16 of LEP 2012 and that each face will be able to be seen from a public place, as what can be seen will give an adequate impression of the three dimensional tower within the proposed building envelope. 74 I am satisfied that the side and rear setbacks of the proposed building envelope comply with the numerical controls in DCP 2012 for commercial buildings, including hotels; that the proposal ensures visual privacy is achieved between dwellings; and that the nil side setback to the southern boundary of the proposal does not necessarily penalise the adjoining site at 412 Pitt Street in terms of redevelopment opportunities above the street wall.

Ground 1 - construction of the LEP

The summons as amended stated in relation to ground 1: Construction of the LEP 1 The Commissioner erred in law in her construction of the term "freestanding tower" as that term appears in clause 6.16 of the Sydney Local Environmental Plan 2012 (LEP) Particulars i. The Commissioner erred in law in finding that the proper construction of the term "freestanding tower" did not require: 1. setbacks from the lot boundary on all sides, and 2. the full extent of each face to be seen from a public place. ii. The Commissioner erred in law in finding at [32] that, for the purposes of properly construing the term "freestanding tower" in clause 6.16(3), it was unnecessary to consider the objectives in clause 6.16(1).

Council's submissions

Clause 6.16 of the LEP operates to prevent the granting of development consent to a building on a site area of less than 800m2 that does not have a freestanding tower. The Commissioner erred in law by finding that the proposed development is a freestanding tower. This error is vitiating.
There are three possible approaches to the interpretation of cl 6.16(3) and each leads to a conclusion that the proposed development does not satisfy its requirements. First, on a consideration of the plain words in cl 6.16(3), it is clear that the tower is not freestanding. From the use of the words "the building will have a freestanding tower", it is apparent that the clause envisaged a building comprised of a podium with a tower on top. This form of tower development is common in the City of Sydney. The proposed development is one that is properly characterised as a podium, then a non-freestanding tower, and then a freestanding tower. The building would abut its neighbours for the first approximately 14 levels. This proposal does not fall within the bounds of cl 6.16(3)(a).
Secondly regard to the objectives in cl 6.16(1) demonstrates that the Commissioner erred. As the majority of the High Court stated in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57], it is essential to look to the context in which a provision appears or to seek guidance from the objects of an act in order to choose the meaning which Parliament can be taken to have intended. The objectives in cl 6.16(1) inform the meaning of the words "freestanding tower". Subclause (a) provides for amenity for the occupants of the tower and neighbouring towers, (d) provides for sunlight to reach the sides and rear of the tower, and (e) promotes the ventilation of Central Sydney by allowing the free movement of air around towers are particularly relevant. Clearly a tower that is attached to another building neither provides for sunlight to that side of the building nor does it permit the movement of air around the tower.
Thirdly, regard may be had where necessary to the legislative history of a provision if ambiguous. The predecessor to cl 6.16 in cl 50 of the 2005 LEP provided for approval of towers on small sites if the proposed development achieved "a separation of any towers to achieve the 'tower in the round' build form characteristic". This legislative history which was clearly directed towards ensuring tower developments had sufficient separation to achieve the "tower in the round" built form informs the construction of cl 6.16(3).

Respondent's submissions

The meaning of the operative provision cl 6.16(3) is plain from its terms and the ordinary grammatical meaning of the words in the provision point to the proper construction. The Commissioner's approach at [27] of the judgment was patently correct. Clause 6.16(3) addresses three separate matters: first, the proposed "development" as a whole; second, the proposed "building" as a whole forming part of that development; and third, "a freestanding tower" that might form part of the building. By its terms the clause does not mandate that the "building" as a whole be freestanding, nor does it prohibit the building as distinct from any freestanding tower component from being connected in part to another building or structure. That the building has a freestanding tower above RL 60.479 is sufficient to satisfy cl 6.16, that it abuts other buildings below that level is irrelevant.
The terms of cl 6.16 do not require the consent authority to hold a pre-conditional satisfaction that the proposed development either complies with or is not inconsistent with the objectives in cl 6.16(1). The matters requiring satisfaction are set out in cl 6.16(3) itself. The objectives of the clause do not change an ordinary textual meaning into something that it is not. In any case the Commissioner at [32] demonstrated that she had considered the objectives in cl 6.16(1) and determined that there was nothing raised by the objectives not already dealt with in cl 6.16(3). The text in 6.16(3) is clear and does not direct attention back to cl 6.16(1) either expressly or inferentially.
Clause 6.16 is not ambiguous and in the absence of ambiguity s 34 of the Interpretation Act 1987 (NSW) is not engaged and reference to extrinsic material does not arise. The Commissioner was correct to place no regard on the material referring to the concept of a "tower in the round" by which the Council seeks to read into the LEP a new prohibition and is irrelevant. Even if the predecessor to the LEP is considered it is plain that there was a clear and intended change to the operative words of the LEP as compared to the previous form.

Ground 1 fails

As French CJ stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [5], the established common law approach to statutory construction begins with the ordinary grammatical meaning of the text having regard to context and purpose. That is not to say that the general purpose of an act displaces the clear meaning of the words being construed: Alcan at [53] per Hayne, Heydon, Crennan and Kiefel JJ. The majority in Alcan stated at [47] (footnotes omitted): This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
A preferred construction not only accords with the ordinary meaning of the words but also with the principal objects of an act. The meaning of the words of the provision "that the legislature is taken to have intended them to have" is the meaning that must be given: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] per McHugh, Gummow, Kirby and Hayne JJ. This intention is most often derived from the language in the text of the provision itself, although not always: Project Blue Sky at [78]; Alcan at [47]. The majority of the High Court in Independent Commission Against Corruption v Cunneen at [31] citing Project Blue Sky at [69]-[70] emphasised that a provision must be construed "so that it is consistent with the language and purpose of all the provisions of the statute."
These principles of statutory construction apply equally to the interpretation of delegated legislation such as environmental planning instruments: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36] per McColl JA. Regard can be had to the circumstance that such instruments are not drafted with the precision of legislation passed by the New South Wales Parliament, justifying a practical focus in their construction: see most recently Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332; [2016] NSWLEC 45 at [151].
Turning to the construction of cl 6.16, it will become apparent that I largely agree with the Respondent's submissions on construction. Clause 6.16(1) identifies the planning objectives intended to be addressed by the clause in relation to tower development in Central Sydney. Clause 6.16(1) is not an operative provision in the sense that it does not specify matters that must be complied with. The operative part of the clause is subcl (3).
Clause 6.16 applies to the development in issue as the building exceeds 55m in height (subcl (2)) and the site is less than 800m2 in area as referred to in the chapeau to subcl (3). The Commissioner's construction of the clause at [26]-[32] is extracted above in par 14. The Commissioner refers to the requirements of cl 16.6(3)(b) in [26], rejects the relevance of the historical analysis of Mr McNicoll in [27], considers the meaning of freestanding tower including by reference to the Macquarie Dictionary in [28], considers that cl 6.16(3)(a) is satisfied in [29] and considers cl 6.16(3)(b) is satisfied in [30]-[31]. No issue in relation to cl 6.16(3)(c) is raised by this appeal.
This ground of appeal alleges error in the Commissioner's conclusion in [28] that the development is for a freestanding tower. Both parties submitted that the meaning of cl 6.16(3) is clear on its face. I agree but consider the Respondent's approach is correct. The Respondent correctly identified that the clause refers to "development", "building" and "freestanding tower", all of which terms must be given work to do in the context of the clause. Subclause (2) refers to development which is a building over 55 metres in height above ground level. Under subcl (3)(a) the consent authority is to be satisfied that the development will consist of a building that will have a freestanding tower as specified (each face of which can be seen from a public place) before granting development consent. Subclause (3)(b) states that it is the development that must provide adequate amenity and privacy for the occupants of the building and must not significantly adversely affect the amenity and privacy of occupants of neighbouring buildings. I emphasise that means the development as a whole.

"Freestanding tower"

As the Commissioner identified, there is no definition of "freestanding tower" or "tower development" in the LEP or the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) under which the LEP is made. The parties agreed at the hearing that a tower can be understood as a building that is significantly taller than it is wide or deep. "Building" is widely defined in the s 4(1) of the EPA Act as follows: (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.
The parties also agreed with the definition of "freestanding tower" stated by the Commissioner at [28] of the judgment, namely "a tower [that is] physically isolated from any other structure adjacent."
The first particular in this ground alleges that the Commissioner erred in law in finding that a freestanding tower did not require setback from the lot boundaries on all sides and did not require the full extent of each face to be seen from a public place.
The Council submitted that cl 6.16(3) permits a development to consist of a "podium" with a freestanding tower on top. The word "podium" does not appear in the clause. A podium in the Council's case appeared to consist of part of a building at its lowest level which was not necessarily set back from all boundaries. On the Council's interpretation of the proposed development, the building consists of three sections: a podium in the first two levels, a non-freestanding tower (or part of a building) up to level 14, and thereafter a freestanding tower up to level 31. The middle section is what makes the development impermissible on the Council's case because it is not freestanding. The statutory or other basis for distinguishing between the podium and the non-freestanding tower or part building element is not made clear in the Council's case.
Clause 6.16(3)(a) states that the building "will have" a freestanding tower, giving rise to a clear inference that the entire building is not required to be a freestanding tower. It does not specify a required minimum ratio of "freestanding tower" to "building", leaving that as an issue to be determined on a case by case basis as a question of fact. The proposed development here consists of a building that has a freestanding tower above RL 60.479. To the extent that cl 6.16(3)(a) requires a building to have a freestanding tower, the Commissioner's finding of fact to that effect was open to her.

View of partial faces from public place required

The Council's further complaint is with the Commissioner's finding in [29] that the development satisfies cl 6.16(3)(a) as part of each face of the freestanding tower above RL 60.479 could be seen from a public place. The Council submits that subcl (3)(c) requires that the whole face of a freestanding tower should be able to be viewed. On the second requirement of cl 6.16(3)(a), that "each face of [the freestanding tower] will be able to be seen from a public place", I agree with the Commissioner's finding at [29] that subcl (a) does not specify that the entirety of each face of a tower must be seen from a public place. There is no statutory basis for inferring the Council's construction.
As a matter of planning context, the subclause is specifically directed to small sites in Central Sydney where buildings are likely to surround them. It would not be practicable to enforce a requirement that the entirety of each face of a freestanding tower element of a building be seen from a public space, as almost inevitably some part of a neighbouring building will block some part of the view of the faces of the tower. It is sufficient to satisfy the subclause if at least part of every face is visible from a public place, which is met in this case according to the Commissioner's findings. No error is established.

Objects of clause considered

Clause 6.16(1) applies to tower development involving the erection of a building with a height greater than 55m above ground level on land in Central Sydney. The objectives of cl 6.16(1) aim to ensure that tower development provides amenity for the occupants of the tower and neighbouring buildings, does not adversely affect the amenity of public places, is compatible with its context, provides for sunlight to reach the sides and rear of the tower, promotes the ventilation of Central Sydney by allowing the free movement of air around towers and encourages uses with active street frontages. Clause 6.16(3) sets out specific requirements for such developments that are to be built on land with a site area of less than 800m2.
The second particular in this ground states that the Commissioner erred in [32] in finding that it was unnecessary to consider the objectives in cl 6.16(1) in order to construe cl 6.16(3). That does not accurately reflect the Commissioner's finding in [32]. The Commissioner identifies in that paragraph why she need not set out the objectives in cl 6.16(1) individually. The Commissioner expressly identified that the objectives in cl 6.16(1) are given effect in the operative provisions in cl 6.16(3). No error in the Commissioner's reasoning is demonstrated.

Legislative history

The Council relied on the legislative history of cl 6.16 as identified by Mr McNicoll as an aid to its interpretation. The Council invited the Court to construe cl 6.16 by way of the concept of a "tower in the round", a term contained in the 2005 LEP.
The High Court stated in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] that while extrinsic materials and legislative history form part of the statutory context they "cannot displace the meaning of the statutory text". While legitimate to have regard to legislative history and extrinsic materials in considering the statutory context where warranted, this material must not supplant the meaning of the words of the provision itself.
As the Respondent submitted, the wording of the clause was specifically changed to the current version. It would be incorrect in principle to rely on the older formulation when the current formulation is unambiguous. The Commissioner did not err in law in deciding at [27] of the judgment to disregard Mr McNicoll's opinion on the application of the legislative history to the clause.
The conclusion of the Commissioner in [28] and [29] that as the building will have a freestanding tower above RL 60.479 with part of each face visible from a public place it satisfies cl 6.16(3)(a) was open to her.
As no error of law in ground 1 has been established this ground fails.

Grounds 2 and 3 - failure to take into account a mandatory relevant consideration and failure to give reasons

The amended summons stated as follows in relation to grounds 2 and 3: Failure to take into account a mandatory relevant consideration 2 The Commissioner failed to take into account, as was required by clause 6.16(3)(b) of the LEP, that the amenity of the occupants of the adjoining residence will be significantly adversely affected. Particulars i. The Commissioner only gave consideration to visual privacy [39] - [41] and [74], and view loss impacts from levels 33 to 36 on the Miramar Apartments' residents [43]. ii. The Commissioner failed to consider loss of outlook and access to daylight or ambient light from levels 18 to 35. Failure to give adequate reasons 3 In the alternative, the Commissioner failed to give any or adequate reasons as to why only visual privacy and view loss were relevant to her consideration of amenity impacts, as required by clause 6.16(3)(b).

Council's submissions

The provisions of any relevant environmental planning instrument are mandatory relevant considerations under s 79C(1)(a)(i) of the EPA Act. The Commissioner was required to be satisfied of a performance test in cl 6.16(3)(b) that the development "will not significantly adversely affect the amenity and privacy of occupants of neighbouring buildings". The Commissioner impermissibly limited her assessment of the impact on the Miramar building to a consideration of loss of views and privacy only. The upper levels 36 to 38 enjoy district views. She failed to consider other impacts on amenity being loss of outlook and access to daylight and ambient light from levels 18 to 35. On the evidence before the Commissioner the adverse impact on the occupants of the Miramar building will be significant. By failing to take into account loss of outlook and access to daylight and ambient light for these levels the Commissioner failed to consider a mandatory relevant consideration. This is a material error of law. In the alternative the Commissioner failed to provide adequate reasons to support the conclusion that there would not be a significant adverse impact on the amenity and privacy of the Miramar residents.
In terms of the impact on the Miramar building, from level 35 the view from the balcony would be almost entirely obscured, and the view from the side window on the southern boundary entirely obscured by the proposed development. The view from the east/west bedrooms on level 35 would remain unchanged. On level 33 the view from the side windows facing south and south west as well as from the balcony would be entirely obscured. On level 18 the limited existing view from the southern side boundary window would be entirely obscured. The view impact analysis discussed above in par 11 shows that from level 18 to 35 the outlook and access to daylight or ambient light would be lost entirely. These living rooms will be unacceptably dark.

Respondent's submissions

At [31] of the judgment the Commissioner made a finding on the relevant mandatory matter that it was her opinion (after a view and evidence) that the proposal would not "significantly adversely affect the amenity and privacy of occupants of neighbouring buildings", primarily the Miramar building. This is sufficient to dispose of this ground. The mandatory matter in cl 6.16(3)(b) was addressed in terms. To go nit-picking through the Commissioner's judgment as the Council has done to try and identify some aspect of what might be part of "amenity" takes a myopic approach to the Commissioner's decision. Clause 6.16(3)(b) does not contain a prescriptive list of matters to be considered. Rather it calls for a holistic assessment of the potential adverse impacts on amenity and whether these impacts will be significant.
It has been stated repeatedly in cases such as Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 at [76] that the reasons of commissioners are not to be analysed and parsed with the myopic focus that might accompany a review of the reasons of a judge. The focus is to finding the essential reasons for a decision. The Commissioner posed the right question and addressed the correct mandatory consideration. No legal error should be found.

Grounds 2 and 3 fail

The Council alleges in ground 2 that the Commissioner failed to take into account a mandatory relevant consideration in that she only considered visual privacy and view loss impacts from levels 33 to 36 on the Miramar building's residents and did not consider loss of outlook and access to daylight or ambient light from levels 18 to 35. The Commissioner posed the issue she understood the Council was raising in [33]-[34] as "…whether the 1.272m northern setback from the site boundary for the southern elevation of the Miramar Apartments constructed on the shared boundary is acceptable". The Commissioner's consideration of the impact on the Miramar building is at [43]-[47] set out in par 14.
In [44] the Commissioner identifies that there are two apartments on each level of the southern side of the building, with respectively an outlook to the rear of the site or over Pitt Street, the east/west axis. Both apartments have balconies at the southern corners. The windows in the southern elevation are identified as providing significant amenity to the living room and sweeping views for the upper levels. The Commissioner was required to be satisfied under cl 6.16(3)(b) that "the development … will not significantly adversely affect the amenity and privacy of occupants of neighbouring buildings". The provision does not prescribe any categories of "amenity" that must be specifically considered by the consent authority.
At [31] of the judgment the Commissioner made the finding that she was "satisfied that the proposed building envelope does not significantly adversely affect the amenity and privacy of occupants of neighbouring buildings." This finding was based on her consideration of evidence and followed a view of the site and surrounds. The evidence included the joint planners' report of Mr Sutherland and Mr Reynolds as summarised in par 12 was to the effect that views from the southern windows for levels 8 to 32 in the Miramar building were obscured in 1999 when the Regis Towers was built. From that period their views were similar to all the other apartments in the Miramar building which have east/west views according to the Respondent, a submission the Council did not disagree with. Mr Sutherland and Mr Reynolds also agreed that the southern windows for levels 37 and 38 of the Miramar building are unaffected by the proposal.
Discussion of view loss from the southern façade of the Miramar building at [43]-[47] of the judgment inherently includes loss of natural light that would flow from the obstruction of the windows in my view. As the Respondent submitted, view loss and loss of outlook in this case are two sides of the same coin due to the close proximity (1.272m) of the proposed building to the southern windows of the Miramar building. The Council's distinction is impermissibly nit-picking and one drawn with an eye attuned to error. This overly critical approach to the Commissioner's decision is contrary to the principles articulated in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368 cited in many subsequent authorities.
On the basis of the evidence before the Court including a view of the development site and its surrounds, the Commissioner made a finding at [31] for the reasons set out in the following paragraphs that the proposed development would not have a significant impact on the amenity of the occupants of the neighbouring building.
The Commissioner considered at length the impacts on the amenity of the occupants of neighbouring buildings, including the Miramar building. Without a prescribed list of matters to be considered at a level of greater specificity than "amenity", it was open to the Commissioner in the exercise of her discretion to consider which matters were most relevant or important to her consideration. In any case I find that the matters identified in the summons as amended during the hearing to include loss of outlook and access to daylight and ambient light are encapsulated in the Commissioner's consideration of view loss.
Due to my finding that the Commissioner was not required to specifically address every possible aspect of "amenity" including those aspects identified in the amended summons, it follows that she was not under a duty to give reasons relating to each of those possible aspects, the substance of the complaint in ground 3. As Tobias JA stated in Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [99]: 99 Accordingly, I would summarise my views on this aspect of the matter as follows: (a) Although a Commissioner of the Land and Environment Court is obliged to consider the principal contested issues before him or her, each of those issues is the genus of which the various arguments in favour or against the resolution of the issue in a particular way are species. (b) It is unnecessary for a Commissioner or a judge of the court to consider each of the species provided he or she has considered the genus. It is that which must be addressed in the Commissioner's or judge's reasons. Those reasons must be adequate to explain, by way of findings and reference to the evidence supporting the findings, the reasoning process adopted by the Commissioner or judge and which has led to his or her conclusion. …
The Commissioner expressly considered the mandatory relevant consideration in cl 6.16(3)(b) and stated her conclusion, on the basis of the evidence and the view, that there would not be a significant adverse impact on the amenity of the occupants of neighbouring buildings including the Miramar at [31] and provided reasons in doing so. Grounds 2 and 3 are not established.

Ground 4 - taking into account an irrelevant consideration

The summons as amended provided the following in relation to ground 4: Taking into account an irrelevant consideration 4 In addition to the above, the Commissioner took into account an irrelevant consideration. Particulars i. The Commissioner took into account the advisory note referred to in Exhibit 12
The Council submitted that ground 4 is connected to grounds 2 and 3. I agree so that while I have set it out separately the Commissioner's consideration of issues called up by grounds 2 and 3 also informs ground 4.

Council's submissions

The Commissioner considered as "important" and gave "determinative weight" to the advisory note to the 1991 modification approval of the Miramar building at [45] and [47] of the judgment. This is an irrelevant consideration. The task mandated by cl 6.16(3)(b) is to consider whether the effect on the Miramar building would be significantly adverse. If it would be, consent must be refused. The Commissioner fell into error by excusing the impact because of the advisory note.

Respondent's submissions

As I largely agree with the submissions of the Respondent on this ground I will address them below in my finding.

Ground 4 fails

The Commissioner's judgment must be read as a whole when considering any ground of appeal. As set out above in par 14, in [31]-[34] and [43]-[47] of the judgment the Commissioner considered matters such as view loss and setback. The suitability of the site for development is a mandatory relevant consideration under s 79C(1)(c) of the EPA Act. That obligation requires the assessment of a proposed development in the context of the surrounding development, in this case its location in Central Sydney. There was evidence before the Commissioner that the proposed development would impact on the amenity of some of the occupants of the Miramar building as identified by the Commissioner at [43]-[44]. The task for the Commissioner under cl 6.16(3)(b) was to be satisfied whether this impact would be significantly adverse on neighbouring buildings, a multi-faceted consideration.
As the Commissioner stated in [47], the Miramar site borrowed from the subject site for any southerly view aspect through the two windows per level that would be impacted. It did so by building to the common boundary and placing windows on that boundary. Those windows were always vulnerable to development on the subject site. The consent authority (the Council) drew this to the attention of the developer of the Miramar building and correspondence to that effect was placed on the file and was discoverable by incoming purchasers. As an important adjoining building the history of the development of the Miramar site and the advisory note to the modification application pertaining to the windows added to the southern façade of the Miramar building are relevant to the Commissioner's consideration. It was not an irrelevant consideration. Further, when the Commissioner's judgment is read in context with the rest of the reasons at [31]-[34] and [43]-[47] it is clear that this was not her sole consideration.
The Commissioner's consideration of the previous approval of the Miramar building and modification to it were important factors which informed her assessment of amenity impacts and the significance of any impacts associated with the proposal. A fundamental fact overlooked in the Council's submissions and relied on by the Respondent is that the Council itself gave consent to the Miramar development in 1991 when the original plans showed no windows on its southern façade. The amenity to the apartments on the southern side was deemed acceptable, taking their views and outlook from balconies pointing east and west. The 1991 amendment to the Miramar development consent allowed additional windows to be added to the northern and southern façades of the building, thereby adding to the already acceptable amenity. The context of the site and the level of amenity, views, outlook and light in the Miramar building previously considered by the Council to be acceptable is a relevant consideration.
Nor was the advisory note given determinative weight in the context of the Commissioner drawing a conclusion in relation to cl 6.16(3)(b). In [47] of the judgment the Commissioner was addressing whether the owners of apartments in the south facing Miramar apartments were sufficiently aware of the potential for their views to be built out. That is the issue to which she refers in line six of that paragraph when stating that the advisory note had determinative weight.
The Council's complaint is really directed at the merits of the Commissioner's conclusion that the adverse impact on the Miramar building would not be significant. That the Council considers the impact to be so is not relevant in an appeal of this kind.
No error of law has been identified in this ground of appeal. Accordingly the Council's appeal is dismissed.
Costs generally follow the event in appeals of this kind. The usual order is that the Council must pay the Respondent's costs.

Orders

The Court makes the following orders: 1. The Applicant's appeal under s 56A of the Land and Environment Court Act 1979 is dismissed. 2. The Applicant is to pay the Respondent's costs of this appeal. 3. The exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2016

(2016) 217 LGERA 332

(2004) 140 LGERA 144

At a glance

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Judgment (23 paragraphs)

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Cases Cited (20)

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