Eastview (Australia) Pty Ltd v Ryde City Council

The subject site, having an area of 1.19 hectares, is known as lots 8 and 9 in DP 876736, Julius Avenue, Riverside Corporate Park, North Ryde.

On 11 September 2000, the council granted development consent for the construction of four six-storey buildings over basement carparking on the subject site ("the original consent"). The total gross floor area of these proposed buildings was 36,648 sq m.

When the original consent was granted, it did not contain any condition requiring a monetary contribution under 94 of the Environmental Planning and Assessment Act 1979. The parties agreed that there was no relevant contributions plan at that time. They further agreed that the development contribution plan (tab 9 of exhibit 3), which became effective on 3 September 2003 and has subsequently been amended, now applies to new development on the subject land.

On 16 June 2004, an application under s 96 was submitted to Council ("the first s 96 application"), which included the following modifications: (1) a reduction of the floor space within combined buildings B and C from 18,324 sq m (as approved in the original consent) to 15,658 sq m ; (2) an increase of the footprint of buildings D and A in size by 250 sq m per floor; (3) a change in the position and shape of the basement car park; (4) a redesign of layout and position of plant rooms, lifts, stairs and bathrooms; (5) a reduction in floor-to-floor heights; (6) addition of loading dock facilities; (7) changes to the public space in between buildings A and D incorporating changes to the drop-off area; (8) provision for a café of 220 sq m; (9) realignment of buildings A and D (5 degrees rotation to building A and 7 degrees rotation to building D); (10) modification of the facade treatment of buildings A and D (to incorporate a current high-performance aluminium-framed glazed-curtain wall system with solar control louvres).

In respect of item (1) above, the first s 96 application and the accompanying plans showed the maximum footprint of buildings B and C and indicated that details of the buildings would be the subject of a future s 96 application or a new development application.

On 22 July 2004, the council approved the first s 96 application: the council modified the original consent by substituting a new condition 1 (which identified the amended plans), by deleting condition 2, and by adding the following new conditions 65 and 66:

65. A local development application is to be submitted for buildings B and C. The building envelope and floor space is to be in accordance with the approved architectural plans as per condition 1 contained within this development consent. 66. A local development application is to be submitted for the café. This application is to include full details of the floor plan, elevations, section [sic] plus a statement of environmental effects. The building envelope and floor space is to be in accordance with the approved architectural plans as per condition 1 contained within this development consent.

On 19 January 2005, "the present s 96 application" - the subject of this appeal -was submitted to the council. A description of the proposed modifications is as follows: (1) The deletion of conditions 65 and 66 (quoted above). (2) The provision of a floor plan layout for the café and full details in respect of the combined buildings B and C. (3) A reduced height of buildings B and C through relocation of the carpark, reduced floor to floor heights and deletion of one commercial level. The roof has been lowered from RL 58.6 to RL 48.7. (4) The service cores have been repositioned. (5) The facade of the building will be modified to match the facade of buildings A and D. (6) All car parking is to be located on or within the 2.5 parking levels beneath buildings A and D. This results in the approved basement car parking beneath buildings B and C being deleted. All parking will be accessed from Julius Avenue (rather than the right of way from Richardson Place as approved). Access off Richardson Place is restricted to service vehicles. The car parking layout has been rearranged. (7) Pedestrian access from the car park to buildings B and C will be via a lift and bridge. (8) The pedestrian/vehicular access to the podium has been amended. Vehicular traffic is one-way with a drop off, courier and van servicing area.

The table below provides a comparison of the development as approved in the original consent and of the development as proposed to be modified by the present s 96 application:

Elements of the development As approved by the original consent As modified by the present s 96 application Gross Floor Area . . Building A 9,162 sq m 10,385 sq m Buildings B and C 18,324 sq m 15,658 sq m Building D 9,162 sq m 10,385 sq m Café - 220 sq m Total Gross Floor Area 36,648 sq m 36,648 sq m Height . . Building A 6 storeys (RL 66.4) 6 storeys (RL 66.4) Buildings B and C 6 storeys (RL 58.6) 5 storeys (RL 48.7) Building D 6 storeys (RL 66.4) 6 storeys (RL 66.4) Car Parking . . Total Parking 1,013 spaces 1,013 spaces No. of parking levels: . . -Buildings A and D 2 2.5 -Buildings B and C 4 0

The planning controls that apply to the present s 96 application are as set out in the statement of basic facts, and no issue relating to the controls was raised by the council.

It was agreed that if the proposed modified buildings B and C were the subject of a new development application (and ignoring the fact that the unmodified buildings B and C were approved by the original consent), council's development contribution plan would enable the council to levy, in accordance with s 94, monetary contributions for public services and amenities totalling $1,064,744.

The council's statement of issues dated 28 April 2005 provided the framework for the submissions of the parties, and I quote it in full: 1. Whether in the proper exercise of the Court's discretion the application, insofar as it proposes the deletion of conditions 65 and 66, ought to be refused? Particulars The deletion of conditions 65 and 66 will operate to deprive the council, and hence its ratepayers, of the benefit of a significant amount of cash contribution, levied pursuant to s 94 of the Environmental Planning and Assessment Act, which contribution would be applied towards providing the public amenities and public services the need for which is generated by the proposed development, whereas retention of those conditions, through dismissal of the appeal in the relevant respect, will secure that benefit. 2. Whether it is in the public interest to delete conditions 65 and 66? Particulars: As for issue 1.

3. Whether the development as modified by the proposal before the Court is substantially the same as the development for which consent was originally granted? Particulars: The deletion of conditions 65 and 66 will operate to deprive the council, and hence its ratepayers, of the benefit of a significant amount of cash contribution, levied pursuant to s 94 of the Environmental Planning and Assessment Act, which contribution would be applied towards providing the public amenities and public services the need for which is generated by the proposed development. Retention of those conditions will secure that benefit. 4. The following is a question of law: Whether the differing outcomes in terms of the applicant's liability for s 94 contributions (that is, between modification which permits alterations to buildings B and C and the grant of development consent to those alterations) are relevant matters to be taken into account by the consent authority in considering whether it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted?

In considering the above questions, I have received helpful oral and written submissions from senior counsel for each party. Mr J Ayling SC (and Mr A Pickles) on behalf of the council submitted that the questions posed in issues 1 and 2 (par 16 above) should be answered: 1. "Yes"; and 2. "No". Mr B Preston SC (and Ms J Jagôt) on behalf of the applicant made submissions in support of the contrary answers. I will return to each of these issues later in this judgment.

In respect of issues 3 and 4, Mr Ayling stated in oral submissions that he was instructed not to argue that the proposed modified development was substantially different from the originally approved development. However, he submitted that it would be a matter for the Court to satisfy itself that the proposed modified development was substantially the same as the originally approved development.

Having compared the plans relating to the original consent with the plans of the proposed modified development, it seems to me that as a matter of law it would probably be open to make a finding of fact that the proposed development was substantially the same as the originally approved development or a finding of fact that it was not substantially the same.

I am prepared to accept as a question of fact that the proposed modified development is substantially the same development as the originally approved development. There are some individual significant changes, which taken in isolation on a smaller site might have required a new development application; but in the context of the quite large proposed development, the changes may be regarded as not causing the proposed modified development to be substantially different from the development that is the subject of the original consent. The similarities of the originally approved development and of the proposed modified development can be seen in the table at par 13. Moreover, there were no objections to the proposed modified development from members of the public.

When determining an application under s 96, conditions relating to the modified development may be imposed as explained by McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [51]-[54]. However, that power does not extend to imposing a condition that a monetary contribution is to be paid under s 94 - certainly, this would appear to be the case if no contribution was required at the time the original consent was granted. Section 94 provides a code applicable to the granting of a development consent. Section 96(7) of the Act states that "the modification of a development consent…is taken not to be the granting of development consent…" However, where a monetary contribution has been required as a condition of the granting of a development consent, it would appear that the already-imposed contribution may be modified under s 96: Security Storage Pty Ltd v Leichhardt Municipal Council (1996) 93 LGERA 176 at pp 180-1. That is not the case in respect of the present s 96 application, and both parties agreed that there was no power to require a monetary contribution for public services and public amenities under s 96 in respect of the proposed modified buildings B and C. (The council did not assert any claim for monetary contributions in respect of the other approved buildings.)

I come now to consider issue 1 in more detail. The council relied upon the following passage of Bignold J in Peter Duffield and Associates Pty Ltd v Canada Bay City Council (2002) 124 LGERA 349 at [35]-[36]: Accordingly, it is simply not open to the council, or on appeal to this Court, to impose on the grant of a modification application a s 94 contribution condition, and the applicant's willingness to submit to such a condition does not overcome the obvious lack of jurisdiction or power.

In my judgment, this very practical and significant consequence of granting the modification application provides a cogent reason, as a matter of discretion, to refuse the modification application, for it cannot be supposed that the Legislature in providing the facultative power to modify a development consent intended that that power would operate in a given case to deprive the council, and hence its ratepayers, of the benefit of a very significant amount of cash contribution pursuant to be the EP&A Act, s 94. It is to guard against such unintended results that the statutory modification power is discretionary, and the discretion in a given case may be exercised by refusing the modification application even if the "threshold" or "narrow gateway" tests are satisfied: see North Sydney Council v Michael Stanley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 per Mason P.

The applicant submitted that the principle concerning the discretionary power in s 96, enunciated by Bignold J in the above quotation, was wrong. In the applicant's submission, the legislature gave an applicant a choice to apply under s 97 or under s 96 to modify a development, and that if the application was made under s 96 the intention of the legislature was that s 94 contributions could not be levied. To refuse a s 96 application in order to force an applicant to apply under s 97 would make the available choice illusory. In support of that proposition, the applicant referred by analogy to Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32 at [72] and Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31.

I respectfully agree with the principle concerning the discretionary power enunciated by Bignold J in Peter Duffield (par 22 above). Moreover, I am bound to follow it. In addition, if I were faced with similar facts to those disclosed in Peter Duffield I would apply the principle in the same way as his Honour, leading to a refusal of the s 96 application.

However, the facts in Peter Duffield are quite different from the present appeal, as Mr Preston rightly submitted. In Peter Duffield the originally approved development was for a building containing 32 serviced apartments, and the applicant in that case proposed to modify the consent so as to change the use to 4 serviced apartments and 28 residential flats. The contributions payable in respect of the proposed residential flats were significantly greater than the contributions payable for the approved serviced apartments. In his Honour's opinion, the difference between the originally approved development and the proposed modified development was of such a magnitude as to justify a conclusion that the development as modified was not substantially the same development as was originally approved. In that case, there was clearly an increased demand for public services and public amenities from the proposed use as compared with the originally approved use.

However, in respect of the present s 96 application, there will be no increased demand for public services and public amenities when the true comparison is made of the demand generated by the unmodified buildings and the demand created by the proposed modified buildings. The proposed gross floor area of the modified buildings is unlikely to generate a demand for public services and public amenities in excess of the demand created by the development in the original consent (see the table at par 13 above). Indeed, for proposed modified buildings B and C (in respect of which the council would wish to claim contributions if the buildings were the subject of a s 97 application), the floor space will be less than the floor space of the unmodified buildings.

In preparing a contributions plan, the council has to take into account that there will often be existing developments, or developments which have been approved but not yet carried out, and that in respect of such developments the council cannot levy contributions retrospectively for public amenities and services relating to such developments. If those public services and amenities are required, other sources of revenue (apart from s 94 contributions) such as general rates, special rates or government grants may need to be relied upon.

The scheme of s 94 of the Environmental Planning and Assessment Act 1979 is that monetary contributions may only be levied that are reasonable and are in respect of a likely increased demand for public amenities and public services. In respect of the present s 96 application, it seems to me that it would not be contrary to the public interest to approve the modifications.

Even assuming that the applicant had lodged a development application for the proposed modified buildings B and C (plus café) instead of lodging the present s 96 application, it seems to me that it would be relevant for the council to take into account that the unmodified development (if carried out) would create at least an equal if not greater demand for public services and public amenities than the modified development, and the council could decline to levy any contributions under s 94. Even if the council was obliged, or considered itself obliged, to levy contributions in accordance with its contributions plan for the proposed buildings B and C, I think it is likely that this Court on appeal would disallow the contributions as being unreasonable: see the new s 94(7) - formerly s 94(12), which was considered in Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266. As I said in Rose Consulting at first instance, and as was quoted with approval in the Court of Appeal (at [21]), "reasonableness" includes concepts of fairness, equity, sound judgment, moderation and proportionality.

The question of law in issue 4 (par 16 above) does not really arise on the facts of the present case because, whether the application for modification were made under s 97 or under s 96, it is unlikely that there would be differing outcomes, for the reasons mentioned above.

Condition of consent: "the development is to be substantially in accordance with" specified plans

Condition 1 of the original consent began with the words: "Development is to be carried out substantially in accordance with the plans…" (my emphasis). Again, when the council approved the first s 96 application, the council used the same wording in the new condition 1. The wording proposed by the applicant in respect of the draft modifications for the present s 96 application is also the same and was not objected to by the council.

However, the word "substantially" allows a range of variations to the plans, some which could conceivably have important environmental or amenity impacts. Also, if the word "substantially" is included in the condition of development consent, it would appear to allow too great a discretion to a certifying authority when deciding whether or not there has been compliance with the conditions of consent (Environmental Planning and Assessment Regulation 2000, reg 146(c)). In respect of significant or material changes to the plans, the preferable view is that they should be made by way of a modification application to the council. Alternatively, some changes would be permitted at the construction stage by the very fact that the construction-certificate plans need be only "not inconsistent with" the development consent (reg 145(1)(a)). Thus, the regulations allow a certain degree of latitude, because the construction-certificate plans do not have to be so precise as to "conform with" the development-consent plans.

If the council had objected to the inclusion of the word "substantially", I would have deleted it unless there was a very good reason to the contrary advanced by the applicant.

Accordingly, the orders of the Court are: 1. The appeal is upheld. 2. Pursuant to s 96 of the Environmental Planning and Assessment Act 1979, development consent no. 1395/99 granted by the council on 11 September 2000, as modified by the council on 22 July 2004, is now modified as follows - (1) Delete the description of the development (preceding the conditions) and insert instead - Development: Construction of two six-storey buildings over basement carparking and two five-storey buildings. (2) Delete condition 1 and insert instead - 1. Development is to be carried out substantially in accordance with the plans S96-601 issue A to S96-610 issue A prepared by Fitzpatrick + Partners and A90SEC96 00 to 13, revision A, dated 16 January 2005 prepared by OPRA Architects, and the supporting information submitted to Council including - (a) Statement of Environmental Effects prepared by JBA Urban Planning Consultants Pty Ltd, as amended by the S 96 Planning Report prepared by Robinson Urban Planning, (b) Tree Survey Report prepared by Gunninah Environmental Consultants dated August 2000, (c) Bushland Management Plan prepared by Gunninah Environmental Consultants dated August 2000, (d) Bush Fire Threat Assessment prepared by Conacher Travers Pty Ltd dated August 2000.

3. The exhibits, other than exhibits A, B and 1, may be returned. __________ A J Nott, Commissioner of the Court

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.