Gomon Pty Ltd v Council of the City of Sydney

Catchwords

[2016] NSWLEC 121 Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86[2018] NSWCA 245 Attorney-General (NSW) v Quin (1990) 170 CLR 1[2013] NSWLEC 48 Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd (2010) 178 LGERA 411[2010] NSWCA 353 Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd and Minister for Mineral Resources (No 2) (2010) 172 LGERA 25[2010] NSWLEC 1 Davis v Gosford City Council (2014) 87 NSWLR 699[2014] NSWCA 343 DeAngelis v Pepping (2014) 203 LGERA 61[2013] NSWLEC 66 Hill v Woollahra Municipal Council (2003) 127 LGERA 7[2011] NSWCA 349 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256[2018] NSWLEC 118 Lane Cove Council v Orca Partners Management Pty Ltd (No 2) (2015) 208 LGERA 114[2015] NSWLEC 52 Local Democracy Matters Incorporated v Infrastructure NSW (2019) 235 LGERA 378[1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594[2011] HCA 1 Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259[1996] HCA 6 at 291 Minister for Planning v Walker (2008) 161 LGERA 423

Judgment (50 paragraphs)

[1]

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at 291 Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 NBDY v Minister for Immigration and Multicultural Affairs [2006] FCAFC 145 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 Notaras v Waverley Council (2007) 161 LGERA 230; [2007] NSWCA 333 Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 SOCARES Support Group Inc v Cessnock City Council (2012) 190 LGERA 1; [2012] NSWLEC 23 Stamford Property Service Pty Ltd v City of Sydney [2015] NSWLEC 1189 Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186; [2015] NSWLEC 1 Turland v Wingecarribee Shire Council [2018] NSWLEC 1511 Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79; [2001] NSWLEC 46 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 Category: Principal judgment Parties: Gomon Pty Ltd (Applicant) Council of the City of Sydney (First Respondent) IOF Custodian Pty Limited (Second Respondent) Brookfield 388 Landowner Pty Ltd (Third Respondent) Representation: COUNSEL: D Hume (Applicant) M Astill (First Respondent) A Galasso SC (Second and Third Respondents)

[2]

SOLICITORS: Back Schwartz Vaughan (Applicant) Council of the City of Sydney (First Respondent) Norton Rose Fulbright (Second and Third Respondents) File Number(s): 18/393263

[3]

Judgment

Another case where permission to vary a development standard requires scrutiny arises in this judicial review challenge to a grant of conditional development consent to the Second and Third Respondents IOF Custodian Pty Limited and Brookfield 388 Landowner Pty Ltd. The proposed development site at 378-394 George Street Sydney includes the old American Express building where the Land and Environment Court was once situated. Conditional development consent for alterations to the existing tower building as well as a new podium building on the corner of King and George Streets Sydney (DA/2018/405) was granted by the Central Sydney Planning Committee (CSPC) on 6 December 2018. The land is part of the Central Sydney precinct as identified in the Sydney Local Environmental Plan 2012 (SLEP). The Applicant is Gomon Pty Ltd.
Eight grounds of review are identified in the amended summons dated 14 March 2019. Ground 5 was not pressed at the hearing. The Applicant bears the onus of proof of establishing its case to the civil standard: SOCARES Support Group Inc v Cessnock City Council (2012) 190 LGERA 1; [2012] NSWLEC 23 at [8] citing Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] (Gummow J); Gilbank v Bloore (No 2) [2012] NSWLEC 273 at [48].
The limits of judicial review should be identified as they are tested in some of the grounds of review. The merits of the relevant decision cannot be considered in judicial review proceedings: Gilbank v Bloore (No 2) at [48] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 42; and Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186; [2015] NSWLEC 1 at [90] citing Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35-36 (Brennan J).
The documents that were before the CSPC must be read fairly and as a whole and not with an eye that is finely tuned to search for error: Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 at [67] citing Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at 291.

[4]

Statement of agreed facts

The parties agreed a statement of facts dated 9 May 2019 which contains the following chronology: 8 June 2017 City of Sydney Design Advisory Panel (DAP) presented with three proposals concerning a proposed redevelopment of 378-394 George Street Sydney. 25 October 2017 Pre-development application (DA) meeting held between the City of Sydney Council (the Council) and Second and Third Respondents. 7 December 2017 Further pre-DA meeting held between Council and Second and Third Respondents. 20 April 2018 By lodgement of DA, Second and Third Respondents applied for consent to carry out proposed development. Between 2 and 31 May 2018 Council publicly notified DA. 7 June 2018 DA presented to DAP. 23 August 2018 Second and Third Respondents submitted amended plans to Council. 28 September 2018 Second and Third Respondents submitted further amended plans to Council. 25 October 2018 Second and Third Respondents submitted one plan entitled "SK181024 Easement Area" to Council. Council did not publicly re-notify DA after submission of amended plans. 15 November 2018 CSPC resolved to defer its determination of DA to enable a late submission to be discussed further with council officers. 6 December 2018 CSPC determined DA by granting consent subject to conditions.

[5]

The estimated cost of the proposed development was approximately $54 million. The development is on land zoned B8 Metropolitan Centre under the SLEP, and is development to which cll 6.21 and 7.20 of the SLEP apply.

[6]

City of Sydney Act 1988

The decision to grant development consent subject to a number of conditions was made by the CSPC. The notice of the grant of the conditional development consent was formally issued by the Council on its letterhead. The CSPC is established as a separate statutory entity under the City of Sydney Act 1988. Parts of the City of Sydney Act are set out below to provide the legal context for the CSPC: Part 4 Planning in the City of Sydney Division 1 Preliminary 31 Definitions In this Part: major development means development carried out or proposed to be carried out on land within or partly within the City of Sydney, being: (a) development the estimated cost of which exceeds 50 million dollars, or (b) development the subject of a development application which, if unconditional consent were to be granted to the application, would not comply with an environmental planning instrument that applies to the land concerned, or (c) development the subject of a development application, or development of a specified class, that the Minister administering Part 4 of the Planning Act has requested the Planning Committee to deal with. … Division 2 Constitution of the Central Sydney Planning Committee 33 The Planning Committee (1) There is constituted by this Act a committee of the City Council to be known as the Central Sydney Planning Committee. (2) The Planning Committee has the functions conferred or imposed on it by or under this or any other Act. (3) A function exercised by the Planning Committee shall be taken to have been exercised by the City Council. (4) The Planning Committee is not subject to the control or direction of the City Council and the City Council has no power to affect (by amendment or revocation or otherwise) a decision of the Planning Committee. (5) Any difference arising between the City Council and the Planning Committee may be dealt with under section 742 of the Principal Act as if it were a difference between councils. (6) The Planning Committee is, by virtue of this subsection, a corporation. 34 Members of Planning Committee (1) The Planning Committee is to consist of the following 7 members: (a) the Lord Mayor of Sydney, (b) 2 councillors of the City of Sydney elected by the City Council, (c) 4 persons (2 of whom are senior State government employees and 2 of whom are not State or local government employees) appointed by the Minister administering Part 4 of the Planning Act, each having expertise in at least one of architecture, building, civic design, construction, engineering, transport, tourism, the arts, planning or heritage. (2) The Minister administering Part 4 of the Planning Act is to obtain the concurrence of the Minister administering the Public Works Act 1912 before appointing a senior State government employee under subsection (1) (c) if the employee is appointed because of his or her expertise in architecture or civic design. (3) At least one of the senior State government employees appointed under subsection (1) (c) must be either the Secretary of the Department of Planning and Environment or another Public Service senior executive (within the meaning of the Government Sector Employment Act 2013) employed in the Department of Planning and Environment. … 36 Access to records etc of City Council The Planning Committee is entitled: (a) to have access to, and to make copies of and take extracts from, records of the City Council relevant to the exercise of its functions, and (b) to the use of the staff and facilities of the City Council in order to exercise its functions. … Division 3 Environmental planning functions of the Planning Committee … 40 Determination of major development applications (1) The Planning Committee has and may exercise the functions of the City Council under Parts 4, 5, 6 and 8 of the Planning Act in relation to the carrying out of major development, to the exclusion of the City Council (subject to any delegation under this section). (2) The Planning Committee may delegate to an authorised person or body the exercise of any of the Committee's functions under subsection (1) with respect to a particular application for development consent or with respect to any class of applications for development consent. A delegation can be given subject to conditions. A delegation does not (despite section 38) require the approval of the Minister. (3) The Planning Committee, or a delegate, must not exercise a function under this section that will result in the making of a decision that will have, or that might reasonably be expected to have, a significantly adverse financial impact on the City Council until after it has consulted with the City Council. (4) In this section: authorised person or body means the City Council, the general manager, the Chairperson of the Planning Committee, or any subcommittee of the Planning Committee.

[7]

Environmental Planning and Assessment Act 1979

Relevant sections of the EPA Act provide: Part 1 Preliminary … 1.4 Definitions (cf previous s 4) (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force. ... Part 3 Planning instruments … Division 3.6 Development control plans (DCPs) 3.42 Purpose and status of development control plans (cf previous s 74BA) (1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development: (a) giving effect to the aims of any environmental planning instrument that applies to the development, (b) facilitating development that is permissible under any such instrument, (c) achieving the objectives of land zones under any such instrument. The provisions of a development control plan made for that purpose are not statutory requirements. (2) The other purpose of a development control plan is to make provisions of the kind referred to in section 3.43 (1) (b)-(e). (3) Subsection (1) does not affect any requirement under Division 4.5 in relation to complying development. 3.43 Preparation of development control plans (cf previous s 74C) (1) The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable: … (c) to provide for (or exclude) public or particular advertising or notification of any of the following: (i) a development application for specified development (other than State significant development or designated development), … … Part 4 Development assessment and consent … Division 4.3 Development that needs consent (except complying development) … 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. ... (6) Definitions In this section: (a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and ...

[8]

Sydney Local Environmental Plan 2012

Relevant clauses of the SLEP provide: Part 4 Principal development standards … 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map [the development falls within "Area 1" on sheet 14 of the Floor Space Ratio Map and is permitted a base FSR of 8:1] 4.5 Calculation of floor space ratio and site area (1) Objectives The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development. (4) Exclusions from site area The following land must be excluded from the site area: (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)). ... 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. … (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). … Part 6 Local provisions - height and floor space Division 1 Floor space in Central Sydney Subdivision 1 Preliminary 6.1 Objective of Division The objectives of this Division are as follows: (a) to provide for additional floor space to be granted as an incentive for certain development in Central Sydney, (b) to establish a framework for the transfer of development potential from the site of a heritage building to another site in Central Sydney. 6.2 Definitions In this Division: accommodation floor space - see clause 6.4. Area means an Area shown on the Floor Space Ratio Map. car parking reduction floor space - see clause 6.5. end of journey floor space - see clause 6.6. entertainment and club floor space - see clause 6.7. heritage floor space - see clause 6.10. lanes development floor space - see clause 6.8. opportunity site means land identified as an opportunity site on the Opportunity Sites Map. opportunity site floor space - see clause 6.9. 6.3 Additional floor space in Central Sydney Despite clause 4.4, the gross floor area of a building on land in Central Sydney may exceed the maximum permitted as a result of the floor space ratio shown for the land on the Floor Space Ratio Map by an amount no greater than the sum of any one or more of the following for which the building may be eligible: (a) any accommodation floor space, (b) any amount determined by the consent authority under clause 6.21 (7) (b), (c) any car parking reduction floor space, end of journey floor space, entertainment and club floor space, lanes development floor space or opportunity site floor space. (d)-(f) (Repealed) … Subdivision 2 Types of additional floor space 6.4 Accommodation floor space (1) A building that is in an Area, and is used for a purpose specified in relation to the Area in paragraph (a), (b), (c), (d), (e), (f) or (g), is eligible for an amount of additional floor space (accommodation floor space) equivalent to that which may be achieved by applying to the building the floor space ratio specified in the relevant paragraph: … (b) Area 1, office premises, business premises, retail premises, residential accommodation or serviced apartments - 4.5:1, … 6.5 Car parking reduction floor space Development on land in Central Sydney that results in the use of any part of a basement of a building being changed from a car park or from an area that is used for parking cars to any other use, causes the building to be eligible for an amount of additional floor space (car parking reduction floor space) equal to the area of any such changed use. 6.6 End of journey floor space (1) A building on land in Central Sydney that is used only for the purposes of commercial premises and that has all of the following facilities together in one area of the building, is eligible for an amount of additional floor space (end of journey floor space) equal to the floor space occupied by those facilities: (a) showers, (b) change rooms, (c) lockers, (d) bicycle storage areas. (2) The amount of end of journey floor space cannot be more than the amount of floor space that can be achieved by applying a floor space ratio of 0.3:1 to the building. … Subdivision 3 Heritage floor space 6.10 Heritage floor space (1) Objective The objective of this clause is to provide an incentive for the conservation and on-going maintenance of heritage buildings within Central Sydney. (2) Creation of heritage floor space The Council may record in the register an amount of heritage floor space in respect of a person if: (a) the person is the owner or the nominee of the owner of a building that is a heritage item shown marked "*" in Schedule 5 (a heritage building), and (b) the heritage building is on land in Zone B8 Metropolitan Centre, and … (3) Trading heritage floor space The Council is to reduce the amount of heritage floor space recorded in the register in respect of a person (the transferor) and is to record that amount in the register in respect of another person (the transferee) as soon as practicable after it becomes satisfied that the heritage floor space has been transferred from the transferor to the transferee. … 6.11 Utilisation of certain additional floor space requires allocation of heritage floor space (1) Despite any other provision of this Part, development consent must not be granted to development in respect of a building on a site in Central Sydney that utilises any amount of additional floor space specified in paragraph (a), (b) (c), (d) or (e) unless the consent authority is satisfied that an amount of heritage floor space will be allocated to the site (whether because of a condition of consent or otherwise) in accordance with the following relevant paragraphs: (a) accommodation floor space in respect of a building (the height of which will exceed 55 metres following the development) on a site in Area 1, 2 or 3 - unless an amount of heritage floor space is allocated to the site that is equal to 50% of the accommodation floor space to be utilised, (b) accommodation floor space in respect of a building (the height of which will exceed 55 metres following the development) on a site in Area 4 (but only if the accommodation floor space causes the floor space ratio of the building to be greater than 8:1) - unless an amount of heritage floor space is allocated to the site that is equal to 50% of any accommodation floor space to be utilised, (c) opportunity site floor space - unless an amount of heritage floor space is allocated to the site that is equal to 50% of the opportunity site floor space to be utilised, ... (e) additional floor space permitted under clause 4.6 in respect of a building on a site that also utilises additional floor space referred to in paragraph (a), (b) (c) or (d) - unless an amount of heritage floor space is allocated to the site that is equal to the additional floor space permitted under that clause. (2) The consent authority may reduce the amount of heritage floor space that is required to be allocated to a site under subclause (1) as follows (and in such a case that reduced amount is the amount of heritage floor space that is required to be allocated): ... (b) if the development includes any covered or partially covered pedestrian route through the site at street level and the consent authority is satisfied that the pedestrian route provides a vital and publicly accessible link between 2 streets - the amount of heritage floor space may be reduced by up to 50% or 250 square metres, whichever is the lesser. (c) (Repealed) … Division 4 Design excellence 6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering 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 proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design. (5) Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development: (a) development in respect of a building that has, or will have, a height above ground level (existing) greater than: (i) 55 metres on land in Central Sydney, or (ii) 25 metres on any other land, (b) development having a capital investment value of more than $100,000,000, (c) development in respect of which a development control plan is required to be prepared under clause 7.20, (d) development for which the applicant has chosen such a process. (6) A competitive design process is not required under subclause (5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances or that the development: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings and the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. (7) A building demonstrating design excellence: (a) may have a building height that exceeds the maximum height shown for the land on the Height of Buildings Map by an amount, to be determined by the consent authority, of up to 10% of the amount shown on the map, or (b) is eligible for an amount of additional floor space, to be determined by the consent authority, of up to 10% of: (i) the amount permitted as a result of the floor space ratio shown for the land on the Floor Space Ratio Map, and (ii) any accommodation floor space or community infrastructure floor space for which the building is eligible under Division 1 or 2. (8) Nothing in this clause permits a consent authority to grant development consent to the following development: (a) development that would result in any building on land projecting higher than any sun access plane that is taken to extend over that land by operation of Division 3, or (b) development that results in any building causing additional overshadowing of a kind specified in Division 3, or (c) development that results in any building on land in Area 1 or Area 2 on the Height of Buildings Map having a height greater than the height of the building that was on the land at the commencement of this Plan. (9) In this clause: building demonstrating design excellence means a building where the design of the building (or the design of an external alteration to the building) is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence. capital investment value has the same meaning as in the Environmental Planning and Assessment Regulation 2000. competitive design process means an architectural design competition, or the preparation of design alternatives on a competitive basis, carried out in accordance with the City of Sydney Competitive Design Policy. … Part 7 Local provisions - general … Division 4 Miscellaneous … 7.20 Development requiring or authorising preparation of a development control plan (1) This clause applies to any of the following development: (a) development for the purposes of a new building, (b) development that increases the gross floor area of an existing building. (2) Development consent must not be granted to development to which this clause applies on the following land unless a development control plan that provides for the matters in subclause (4) has been prepared for the land: (a) land in Central Sydney, if the site area for the development is more than 1,500 square metres or if the development will result in a building with a height greater than 55 metres above ground level (existing), ... (3) A development control plan is not required to be prepared if the consent authority is satisfied that such a plan would be unreasonable or unnecessary in the circumstances or that the development: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings or the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. ... (4) The development control plan must provide for all of the following: (a) requirements as to the form and external appearance of proposed development so as to improve the quality and amenity of the public domain, (b) requirements to minimise the detrimental impact of proposed development on view corridors, (c) how proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interface at ground level between the building and the public domain, (xiii) the excellence and integration of landscape design, (xiv) the incorporation of high quality public art into the fabric of buildings in the public domain or in other areas to which the public has access. ...

[9]

Sydney Development Control Plan 2012

Clause 1.3 of the Sydney Development Control Plan 2012 (SDCP) provides: Schedule 1 - Advertising and notification ... 1.3 Amendment of an application prior to determination (under Clause 55 of the Regulation) If an application is amended prior to determination, it will be re-notified/advertised if the amendments are considered to result in significant additional environmental impacts. Any such re-notification/advertising period may be reduced to 14 days if the likely additional environmental impacts are considered to be minor. …

[10]

State Environmental Planning Policy No 1 - Development Standards (now repealed)

The State Environmental Planning Policy No 1 - Development Standards (SEPP 1) (now repealed) provided: 2 Definitions In this Policy, except in so far as the context or subject-matter otherwise indicates or requires: Act means the Environmental Planning and Assessment Act 1979. development application includes an application for consent referred to in clause 7 (1) of the Miscellaneous Acts (Planning) Savings and Transitional Provisions Regulation 1980. development standards has the meaning ascribed thereto in section 4 (1) of the Act. 3 Aims, objectives etc This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act. … 6 Making of applications Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection. 7 Consent may be granted Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6. …

[11]

Evidence

Exhibit A was the court book and exhibit B was the evidence book.

[12]

Resolution of Central Sydney Planning Committee

On 6 December 2018 the CSPC resolved as follows: Item 4 Development Application: 378-394 George Street, Sydney Moved by the Chair (the Lord Mayor), seconded by Councillor Thalis - In noting the Information Relevant to Item 4 - Development Application: 378-394 George Street, Sydney contained within the memorandum dated 5 December 2018 from the Director City Planning, Development and Transport, circulated prior to the meeting of the Central Sydney Planning Committee, it is resolved that: (A) the requirement of Section 51N of the City of Sydney Act 1988 to consult with the Central Sydney Traffic and Transport Committee not apply in this instance as the proposal does not require, or that might reasonably be expected to require, the carrying out of road works or traffic control works that are likely to have a significant impact on traffic and transport in the Sydney CBD; (B) the written request to vary the floor space ratio requirements under cl 4.4 of the Sydney Local Environmental Plan 2012 in accordance with Clause 4.6 "Exceptions to development standards" of the Sydney Local Environmental Plan 2012 be upheld; (C) the requirement under Clause 6.21 of the Sydney Local Environmental Plan 2012 requiring a competitive design process is unreasonable or unnecessary in the circumstances; (D) the requirement under Clause 7.20 of the Sydney Local Environmental Plan 2012 requiring the preparation of a development control plan is unreasonable or unnecessary in the circumstances; and (E) consent be granted to Development Application No. D/2018/405, subject to the conditions set out in Attachment A to the subject report. Reasons for Recommendation The application is recommended for approval for the following reasons: (A) The development is consistent with the objectives and controls for the site under the Sydney Local Environmental Plan 2012 and Sydney Development Control Plan 2012 for reasons set out within the report. (B) The requested variation to the floor space ratio is upheld because the consent authority is satisfied that the applicant's written request has adequately addressed the matters required to be addressed by Clause 4.6 of the Sydney Local Environmental Plan 2012 and the proposed development would be in the public interest because it is consistent with the objectives of floor space ratio and the B8 Metropolitan Centre zone. (C) The proposal, subject to conditions, will not adversely impact upon the amenity of the neighbouring properties or the significance of heritage items adjacent to the site. (D) The proposal, subject to conditions, will enhance pedestrian amenity and the public domain and is in the public interest. Carried unanimously. D/2018/405

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Documents before Central Sydney Planning Committee

The following documents were before the CSPC when it made its resolution on 6 December 2018 above: council officer report (item 4 - DA: 378-394 George Street Sydney) (the Brief) and attachments including recommended conditions of consent, selected drawings and a cl 4.6 application dated 2 November 2018; and relevant information for the CSPC and attachments including the revised cl 4.6 application and submissions prepared on behalf of Politic Pty Ltd.

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Council officer report (item 4 - DA: 378-394 George Street, Sydney)

The council officer report the Brief was the Council's briefing to the CSPC recommending approval of the development subject to conditions and provided: Proposal Summary: The application proposes partial demolition, alterations and additions to an existing retail/commercial podium and lower levels of the tower, and construction of a new 5 storey podium building comprising retail and commercial tenancies, a rooftop terrace and lift access to the basement. The proposal also includes a new covered through site link between George Street and King Street. The proposal provides additional bicycle parking storage for 258 bicycles in the Basement 1, Ground Floor and Level 1. End of journey facilities with an area of 419 sqm are provided on Level 1. A total of 5 car parking spaces will be removed from Basement Level 1 and 2 to accommodate a new lift core and services for the new podium building. The proposal will provide a total of 75 car parking spaces which exceeds the maximum car parking rate of 57 car spaces under Part 7 of SLEP 2012. In this instance, the proposed car parking is considered acceptable as the net number of car parking spaces is reduced and alternative transport options are provided. The site has a maximum building height control of 130m. The existing tower has a building height of 118m which will be maintained. The new 5 storey podium building is consistent with the maximum building height control. However, to improve the relationship of the podium with the existing tower and street wall heights of surrounding developments, the proposal was amended to reduce the height of the podium from RL 44.574 to RL 44.090. A request has been submitted pursuant to Clause 4.6 of SLEP 2012 to vary the floor space ratio (FSR) development standard. The maximum permitted FSR, inclusive of applicable additional floor space, is 12.65:1. The site is also subject to a maximum FSR of 13.4:1 under a Restrictive Covenant on Title approved under Development Consent 296/00139. The existing tower has a FSR of 12.7:1 and exceeds the FSR development standard. The proposed FSR of 13.2:1 results in a further breach of the FSR control under SLEP 2012. The additional FSR sought is predominantly contained within the new 5 storey podium building which is aligned to the street, will contribute to the supply of high quality retail and commercial spaces in Central Sydney, and improves street activation and pedestrian amenity. The request to vary the FSR development standard under clause 4.6 is supported in this case. The applicant has requested that the consent authority find that the requirement for a site specific Development Control Plan (DCP) under Clause 7.20 of SLEP is unreasonable or unnecessary in this instance. The applicant submits that the preparation of a site specific DCP is unreasonable and unnecessary given the scope of the proposal being limited to alterations to the lower levels of the existing tower and a new 5 storey podium building that responds to the original design objective for commercial tower to provide street activation and pedestrian amenity. An informal design options process was voluntarily undertaken by the applicant to identify site constraints and resolve design issues prior to the lodgement of the development application. The proposal (as amended) exhibits design excellence as it will have a positive contribution to the public domain, will not have any adverse environmental impacts and will not adversely affect the significance of adjacent heritage items. In these circumstances, the requirements for a site specific DCP and competitive design process are considered unreasonable and unnecessary. The two requests for waivers sought by the applicant are recommended to be supported by the consent authority. The application was advertised and notified for a period of 28 days (2 May 2018 to 31 May 2018) with 9 submissions received from surrounding property owners. The amended plans were not required to be notified as no additional environmental impacts resulted from the amendments. Six submissions are pro-forma submissions and 3 are unique submissions. Issues raised include excessive floor space ratio, bulk and scale of the new podium building, impact on heritage items and the streetscape, impacts on public domain and pedestrian traffic, failure to demonstrate design excellence, construction impacts on adjoining occupants. The issues raised have been considered in the assessment of the application and where appropriate conditions seek to address the issues. … Reasons for Recommendation The application is recommended for approval for the following reasons: (A) The development is consistent with the objectives and controls for the site under the Sydney Local Environmental Plan 2012 and Sydney Development Control Plan 2012 for reasons set out within the report. (B) The requested variation to the floor space ratio is upheld because the consent authority is satisfied that the applicant's written request has adequately addressed the matters required to be addressed by Clause 4.6 of the Sydney Local Environmental Plan 2012 and the proposed development would be in the public interest because it is consistent with the objectives of floor space ratio and the B8 Metropolitan Centre zone. (C) The proposal, subject to conditions, will not adversely impact upon the amenity of the neighbouring properties or the significance of heritage items adjacent to the site. (D) The proposal, subject to conditions, will enhance pedestrian amenity and the public domain and is in the public interest. … History Relevant to the Development Application … 16. Prior to the lodgement of the subject applicant, the co-owners of the site undertook an informal design options process for a new podium building at the intersection of George Street and King Street. Three designers were engaged to prepare concept designs as part of the process. The outcomes of the design options process was referred to the City's Design Advisory Panel (DAP) at its meeting on 8 June 2017. The panel noted that the podium building at the south-western corner of the site fronting the intersection of George Street and King Street could be supported subject to detailed design addressing appropriate scale to the tower and context, pedestrian congestion, facade treatment to address environmental conditions. 17. The proposed development has been referred to DAP for comment during the development application assessment process. The recommendations given by DAP were provided to the applicant who subsequently amended the proposal to address design issues relating to architectural language, materiality, pedestrian amenity and streetscape impacts. The recommendations provided by DAP are discussed further in the report below. 18 On 29 June 2018, Council officers issued a written request for design amendments to the proposal and submission of additional information relating to waste management, car and bicycle parking and loading/services. 19. At its meeting on 15 November 2018, the Central Sydney Planning Committee (CSPC) resolved to defer the matter to consider the late submission received on 15 November 2018. The CSPC resolved to seek further advice from City officers and enable the applicant to consider the issues raised in the submission. … Sydney LEP 2012 26. The site is located within the BB Metropolitan Centre zone. The proposed use is defined as commercial and is permissible. 27. The relevant matters to be considered under Sydney Local Environmental Plan 2012 for the proposed development are outlined below. Compliance tables [not included to save space in judgment] Issues Floor Space Ratio 29. The site is permitted a base FSR of 8:1 and additional accommodation FSR of 4.5:1 under Clause 6.4 of SLEP. 30. ln addition the proposed development also seeks to include end of journey facilities (419m2) and car parking reduction floor space (85m2) to the maximum FSR of 12.65:1 as permitted under Clauses 6.5 and 6.6 of SLEP. 31. Having regard to the additional floor space permitted for the site, a maximum FSR of 12.65:1 is applicable with a maximum gross floor area of 42,416.5m2. 32. The existing tower has a gross floor area (GFA) of 42,596m2 and a FSR of 12.7:1 (calculated under the current controls) which exceeds the maximum permitted FSR under SLEP. The existing building exceeds the maximum FSR control by 179.5m2 or 0.42%. 33. The proposed development seeks to increase the GFA for the site by 1,674m2 (giving a total GFA of 44,270m2) with a FSR of 13.2:1. This exceeds the permissible FSR control by 0.55:1 (4.3%). The non-compliance with FSR comprises of 85m2 car parking reduction floor space and 419m2 end of journey floor space permitted in Clause 6.5 and 6.6 of SLEP. The applicant submits that the variation to the FSR development standard is 1,170m2, having regard to the additional floor space of 504m2. 34. As a condition of development consent for 296/00139, a Restrictive Covenant on Title restricts the maximum floor space on site to 13.4:1. 35. Clause 6.21 of SLEP permits the consent authority to grant an additional 10% FSR for a building that demonstrates design excellence. In this regard, the maximum FSR available for the site would be 13.75:1, subject to undertaking a competitive design process in accordance with the requirements of SLEP. The applicant has not undertaken a competitive design process in accordance with the City's Competitive Design Policy and has requested the consent authority find that such a process is unreasonable or unnecessary in the circumstances. The applicant's request is discussed in the report below. 36. In accordance with Clause 4.6 of SLEP, the applicant has submitted a written justification seeking exception to the FSR development standard. Clause 4.6 request to vary a development standard 37. The site is subject to a maximum FSR of 12.65:1. The proposed development has a FSR of 13.2:1. 38. A written request has been submitted to Council in accordance with Clause 4.6(3)(a) and (b) of the Sydney LEP 2012 seeking to justify the contravention of the development standard by demonstrating: (a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and (b) That there are sufficient environmental planning grounds to justify contravening the standard. 39. A copy of the applicant's written request is provided at Attachment D. Applicant's Written Request - Clause 4.6(3)(a) and (b) 40. The applicant seeks to justify the contravention of the FSR development standard on the following basis: (a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case: (i) The objectives of the development standard are achieved notwithstanding the non-compliance. The proposed building upgrade works and new podium provides high quality retail and commercial spaces to attract and accommodate long term commercial tenants and additional workers in Central Sydney. (ii) The existing building exceeds the maximum FSR and any addition to upgrade the building would be in breach of the FSR development standard. Providing additional commercial floor space will contribute to the required supply to maintain the competitiveness of Sydney as a commercial and innovative city. (iii) A maximum FSR of 13.75:1 may be permissible for the site and surrounding properties, subject to demonstration of design excellence. The maximum FSR control, with provisions for additional floor space (including design excellence bonuses), envisages greater density than the site specific FSR of 13.4:1 under the Restrictive Covenant. The proposed development has a FSR less than the maximum FSR under SLEP and responds to the urban context comprising of retail podiums built to the boundary with commercial tower above. (iv) The proposed podium building is consistent with the objectives for built form in Section 5.1.1 of SDCP as it will physically define the public domain, responds appropriately to the built form of heritage items and will reinforce the streetscape character within Central Sydney. Having regard to the siting and form of the existing tower, additional floor space to provide a building at the intersection of George Street and King Street is required to achieve the objectives for street activation and amenity within the public domain. (v) No new building works is proposed above Level 5 of the existing 30 storey tower. The additional floor space is not significant in the context of the entire building and is compatible with the intensity of the development surrounding the site. (vi) The site will benefit from its proximity to the Light Rail and the Martin Place Metro Station. The proposed development will benefit from the new infrastructure. (vii) The use of the site for commercial activity does not change. The podium building achieves greater compliance with relevant built form controls under the SLEP and SDCP than the existing podium structure. (viii) The proposed development will not have any adverse environmental impacts on surrounding properties or the public domain in regard to overshadowing, wind, reflectivity, traffic, noise, flooding or stormwater. (ix) Compliance with the development standard would defeat the objectives for floor space to accommodate future commercial needs and is unreasonable. (b) That there are sufficient environmental planning grounds to justify contravening the standard: (i) The original design of the existing tower included a podium and forecourt that defines the street edge with a through site link between George Street and King Street. The proposed development restores the original intent of a podium and through site link to improve pedestrian amenity. (ii) The bulk and scale of the new podium building responds to the surrounding urban context by completing a street corner with retail at the lower levels and commercial uses above. (iii) The new podium building contributes to the desired future character of the locality in comparison to retaining the existing forecourt and additional floor space to the site. (iv) The site is immediately adjacent to the Sydney Light Rail and approximately 250m from the future Martin Place Metro Station. (v) The proposed development encourages sustainable modes of transport by reducing car parking spaces and increasing bicycle parking and end of journey facilities for occupants. (vi) The new through site link enhances amenity for pedestrians with a safe and activated pathway between George Street and King Street. Consideration of Applicant's Written Request - Clause 4.6(4)(a)(i) and (ii) 41 Development consent must not be granted unless the consent authority is satisfied that: (a) The applicant's written request has adequately addressed the matters required to be demonstrated by subclause 3 of Clause 4.6 being that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the standard; and (b) The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. Does the written request adequately address those issues at Clause 4.6(3)(a)? 42. The applicant's written request has adequately demonstrated that compliance with the development standard for FSR is unreasonable and unnecessary in the circumstance of this case as the proposed development satisfies the objectives for FSR, notwithstanding non-compliance with the standard. The new podium building is consistent with the objectives and provisions for developments in Central Sydney as it defines the street and is contextually appropriate in bulk and scale to surrounding developments comprising retail podiums with tower forms above. 43. The proposed development is consistent with the objectives for the 88 Metropolitan Centre Zone and FSR under SLEP and is in the public interest as the new podium building at the corner of George Street and King Street provides opportunities for street activation and enhanced pedestrian connectivity and amenity. The additional floor space does not result in any adverse environmental impacts to surrounding properties and as such, compliance with the development standard which would not facilitate a podium building at the street alignment is considered unreasonable and unnecessary. Does the written request adequately address those issues at clause 4.6(3)(b)? 44. The applicant's written request has adequately addressed that there are sufficient environmental planning grounds to justify contravening the FSR standard as the proposed development responds appropriately to the bulk and scale of the existing tower and surrounding developments, Particularly at the street wall height. 45. Given the existing commercial tower exceeds the maximum permitted FSR under SLEP, compliance with the development standard will not facilitate a podium building, street activation or weather protection for pedestrians that results in a better urban outcome. 46. The alignment of the podium building to George Street and King Street contributes to street activation and the retail character of the area. The podium building also provides the opportunity to enhance pedestrian amenity with the erection of continuous awnings along the intersection of George Street and King Street. 47. The proposed development provides a through site link between George Street and King Street which will enhance connectivity and amenity for pedestrians in the commercial and retail precinct. Is the development in the public interest? 48. The proposed development will be in the public interest as it is consistent with objectives of the floor space ratio development standard and the B8 Metropolitan Centre zone. The proposed development achieves a density that does not result in any adverse amenity impacts on surrounding properties or the streetscape, and will contribute to the supply and quality of commercial spaces in Central Sydney. 49. The proposed development seeks to reduce the total number of car parking spaces and increases bicycle parking an end of journey facilities. 50. The proposed development achieves the objectives for the BB Metropolitan Centre zone by contributing to the availability of retail and commercial uses in Central Sydney. In particular, the proposal is consistent with the objectives of the zone as follows: • To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy" • To provide opportunities for an intensity of land uses commensurate with Sydney's global status • To permit a diversity of compatible land uses characteristic of Sydney's global status and that seive the workforce, visitors and wider community. … 52. The proposal is in the public interest as the new podium building and alterations and additions to the lower levels of the existing tower will contribute to the supply of retail and commercial floor space with a building that enhances the public domain. Notwithstanding non-compliance with the base FSR (including relevant additional FSR bonuses), the proposed development does not exceed the maximum FSR that could be considered for the site, subject to the completion of a competitive design process in accordance with SLEP. Although the proponent has not completed a competition in compliance with that policy, a competitive design process was undertaken and it is considered that the outcome achieved is in accordance with the aims of cl 6.21 of SLEP. In the context of the existing tower and surrounding developments comprising retail podiums and commercial towers, the site is capable of accommodating the new podium building and additional floor space without detracting from the character of the locality. Conclusion 53. For the reasons provided above the requested variation to the FSR is supported as the applicant's written request has adequately addressed the matters required to be addressed by Clause 4.6 of SLEP and the proposed development would be in the public interest because it is consistent with the objectives of floor space ratio and the B8 Metropolitan Centre zone. Height, Scale and Bulk 54. The site has a maximum permitted height of the 130m under Clause 4.3 of SLEP 2012. 55. The existing tower has a height of 118m and comprises 30 storeys of commercial uses. 56. The proposed new podium building is 27.24m and contains 5 storeys. The proposed development does not seek to alter the height of the tower and is consistent with the maximum building height for the site. 57. The proposed podium building is built to the George Street and King Street alignment and has a height of RL 44.090. The height of the podium was reduced by 1m following design recommendations provided by the Design Advisory Panel. The proposed development is consistent with the objectives for building height under SLEP and SDCP as the podium building responds to the context of the site and surrounding properties. In particular, the podium building is generally consistent with the scale of adjacent heritage items to the north, south and west and will not have any adverse impact on significant views in Central Sydney. Waiver for Competitive Design Process and Preparation of a DCP 58. In accordance with Clause 6.21 of the SLEP 2012, a competitive design process is required to be undertaken in Central Sydney for a building over 55m and/or with a site area greater than 1,500m2. 59. Under Clauses 6.21(6) and 7.20(3), a competitive process and development control plan are, respectively, not required if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances or that the development: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings and the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. 60. The applicant has requested that the requirement to undertake a competitive design process and preparation of a DCP for the proposed development be waived under Clauses 6.21(6) and 7.20(3) on the basis that such a process is unreasonable and unnecessary in this circumstance for the following reasons: (a) The proposed alterations to the basement, lower ground, ground and first floors of the podium of the existing building is consistent with the Clause 6.21(6)(a) of the SLEP. The proposed alterations to the existing podium does not substantially alter the bulk and scale of the existing tower. (b) The proposed development does not alter the height of the existing tower. The alterations to the existing podium and construction of the new podium building will result in an additional 1,674m2. The additional floor space improves the relationship between existing retail tenancies and the tower lobby to the public domain and enhances the built form, street activation and pedestrian amenity along George Street and King Street. The podium building is appropriate within the urban context and the additional floor space will not have any significant adverse impacts on surrounding properties or the public domain. (c) The proposed development will improve the appearance of the existing building when viewed from the public domain and adjoining buildings. In particular, the new podium building will define the street edge at the intersection of George Street and King Street and is proportionate to the massing and alignment of surrounding buildings. (d) The visual prominence of the existing tower when viewed from surrounding properties or the public domain will not be adversely affected by the podium building. (e) Existing retail and commercial uses will be retained. (f) The proposed through site link will contribute to the public domain. (g) The new podium building will increase building mass at the base of the 30 storey commercial tower. In the context of the existing tower, the proposed works up to Level 5 will not have any significant impacts on building. 61. The co-owners of the site have voluntarily engaged in an informal design option process to explore design options to satisfy considerations of design excellence under Clause 6.21(4) of the SLEP. ln particular, three architects were engaged by the applicant to prepare design options for the development. These three design options were presented to the City's Design Advisory Panel (DAP) on 8 June 2017. The issue raised by DAP were incorporated into further design development by the applicant prior to the lodgement of the development application. … 63. The amended proposal was presented to DAP for comment on 7 June and 6 September 2018. At its meeting on 6 September 2018, DAP noted that the amended proposal responded to the design issues previously raised and a corner building was a positive contribution to the Central Sydney streetscape. Recommendations relating to the architectural expression of the new podium building were provided and have been incorporated into the amended drawings to provide a more simply [sic] building form and colour scheme that relates to the existing tower. 64. The proposed development has satisfactorily addressed considerations for design excellence under Clause 6.21(4) of SLEP as the site will maintain commercial and retail uses, does not have any adverse impacts on surrounding heritage items, does not detract from the streetscape and is consistent with the objectives and provisions for retail podiums in Central Sydney. In particular, the new podium building will be built to the street alignment with a height of 27m and is consistent with the SDCP controls for street frontage heights ranging from 20m to 45m in Central Sydney. The proposed form and scale is contextually appropriate with surrounding developments containing retail podiums and tower forms above. 65. The proposed development will not have adverse environmental impacts on surrounding properties as the new building works will not result in any additional overshadowing. The proposal will not have any adverse acoustic or visual privacy, wind or reflectivity impacts on surrounding properties, subject to appropriate conditions being imposed. 66. The proposal is consistent with provisions for enhancing the public domain, pedestrian amenity with the provision of a through site link, continuous awning along the George Street to King Street frontage and street activation. 67. The new podium building occupies an area of approximately 377m2 within the subject site area of 3,353m2. In this circumstance, the requirement to prepare a site specific DCP and undertaking a competitive design process is considered unreasonable and unnecessary given the new podium building and additional floor space is contained predominantly to the south-western corner of the site, does not exceed the 55m height control for new buildings and exhibits design excellence as discussed above. 68. Having regard to the scope of the proposed development, the overall massing of the new building works and the processes the applicant has engaged in to address design excellence requirements under Clauses 6.21 and 7.20, the request seeking a waiver for the requirement to prepare a site specific DCP and undertake a competitive design process is acceptable in this circumstance. Through Site Link 69. The proposed through site link is located at ground level between George Street and King Street between the south-western elevation of the existing tower and the new podium building. The through site link will be covered with a metal and glass canopy a height of 11.33m at George Street and 7.4m at King Street. 70. Opportunities for a through site link between George Street and Pitt Street is identified under SDCP 2012 as shown in Figure 21 below. The proposed through site link from George Street to King Street differs in orientation from the potential link shown in the SDCP however, it is noted that compliance with the SDCP would require coordination and substantial redesign of buildings on the subject site and No. 173-179 Pitt Street located immediately to the east of the site. 71. On 20 June 2017, development consent D/2017/115 was approved for the partial demolition and alterations to the podium of the building at 173-179 Pitt Street, immediately to the east of the site. The proposal included new retail shopfronts and building entrances. The approved development does not provide a pedestrian through site link as shown in SDCP. 72. The proposed development seeks to retain the ground level retail tenancies and lift lobby of the existing tower which are located in the area required for a through site link in accordance with SDCP. In this instance, the scope of the proposed development and surrounding properties does not enable the provision of a through site link in accordance with the provisions under SDCP. 73. The proposed through site link is generally consistent with the requirements under SDCP as it provides a pathway that is clearly visible from the public domain. The through site link is immediately adjacent to the entrance to the ground level of the tower and has pedestrian clearance widths between 23.3m fronting George Street, 14.4m fronting King Street and approximately 5.7m through the centre. The splayed design of the through site link and partially glazed canopy maximises views to the sky between the existing tower and the new podium building, and will remain publicly accessible subject to an easement on title. 74. In addition to the proposed new awnings along George Street and King Street, the through site link will also provide additional weather protection for pedestrians. Pedestrian Amenity 75. George Street and King Street are identified as active street frontages in the SDCP. The proposal is generally consistent with the objectives and provisions for development along active frontages as the retail tenancies directly address the street. Furthermore, the proposed alterations to retail tenancies fronting George Street will improve pedestrian access and sightlines to and from the public domain. 76. The proposed realignment of the existing lobby to the tower to directly address George Street will also contribute to street activation. 77. The new building has a continuous awning from George Street to King Street which will enhance weather protection and pedestrian amenity at the intersection. The proposed awning has a width of 2.5m on George Street, 3.3m at the intersection of George Street and King Street and along King Street towards the eastern boundary of the site. The proposed awning is consistent with the objective for footpath awnings under SDCP as the awning will provide additional weather protection for pedestrians and enhance the amenity of the public domain. 78. The proposed awning is continuous along the frontage of the site except the separation between the northern retail tenancies on George Street and the foyer entry to the tower. The break in the awning in this location is considered acceptable given the curved facade of the existing fire stairs to the tower and no active use at that point of the facade. 79. The height of the canopy over the commercial lobby and through site link ranges between 10.4m and 9.8m across the width of through site link with a fall towards the south to 5m. Although the height of the canopy exceeds the height for awnings under SDCP, the scale of the canopy responds appropriately to the existing architectural character of the building as the height matches the soffit of the lobby and contributes to the presentation of the building at pedestrian level. The new canopy extends to the George Street alignment and will provide additional weather protection in comparison to the existing awning over adjacent to the foyer to the tower. 80. The proposed awnings to the new podium building along King Street and the retail tenancies to the east are approximately 3.3m wide. The width of the awning is consistent with the range of acceptable awning widths between 2m and 3.6m under SDCP. The width of the awning is consistent with the width of the approved awning at 173-179 Pitt Street and will contribute to maintaining pedestrian amenity along King Street. 81. The height of the podium building awning is 5m from the footpath and to the retail tenancies to the east is 3.6m. The awning to the east is consistent with the height of approved awning at 173-179 Pitt Street and provides continuous weather protection for pedestrians travelling west along King Street. The podium building awning exceeds the height clearance provided under SDCP however, the height responds to the double height retail space and the adjacent through site link and canopy. In this instance, the awning is considered acceptable as it will provide additional weather protection at the intersection for pedestrians and complements the proposed built form. … Heritage Floor Space 88. The proposed development is subject to the requirement for the purchase of Heritage Floor Space (HFS) under Clause 6.11(1)(e) of SLEP as the proposal includes additional floor space that contravenes the FSR development standard under Clause 4.4 of SLEP. The applicant has submitted a written justification seeking exception to contravening the FSR development standard under Clause 4.6 of SLEP as discussed in the report above. 89. The proposed development seeks consent for 1,674m2 of additional floor space. As the existing building has a FSR of 12.7:1 and exceeds the maximum FSR standard of 12.65:1 (including additional floor space bonuses), the additional floor space of 0.55:1 is subject to the purchase of HFS. 90. As the site provides a covered through site link between George Street and King Street, Clause 6.11(2)(b) of SLEP allows for a reduction in HFS up to 50% or 250m2 whichever is the lesser. In accordance with the Clause 6.11(2)(b), a reduction of 250m2 to the HFS amount of 1,674m2 may be applied. As such, 1,424m2 of HFS is required to be purchased by the development. 91. The applicant has requested that the requirement to acquire the allocated HFS be associated with the staging of construction works associated with the new podium building as the additional floor space under Clause 6.11 of SLEP is predominantly located within the new podium building. The request is also sought on the basis that construction works associated with alterations and additions to the existing tower do not add any additional floor space to the site and could commence without being delayed by the HFS process. 92. Council officers have reviewed the request to require HFS to be acquired during the staged construction of the proposed podium building. In this instance, the staging of construction will enable some early works to commence within the existing tower without any significant impact on the remainder of the development. In this instance, the request is considered reasonable and is supported. A condition has been included in the recommendation relating to the allocation of HFS for the site. … Internal Referrals Design Advisory Panel (DAP) 96. The scheme prepared by FJMT was selected by the co-owners of the site and referred to DAP for comment on 7 June 2018. DAP noted that the proposal had been further refined to address comments and recommendations provided during the Pre-DA lodgement process. DAP reviewed the submitted design and provided comments as follows: … 97. On 23 August 2018, amended plans and additional information in response to DAP and Council officer's request were submitted. The proposal was amended with a reduction in the height of the podium building by 1m, removal of extensions to commercial floors to the north fronting George Street, simplification of facade with reduced horizontal elements to the podium building and use of concrete finish over existing substation. The awning was amended to include a continuous awning at ground floor level of the podium building from George Street to King Street. The canopy over the through site link has been reduced in height to 10.8m fronting George Street with increased glazing. … 99. The amended proposal comprising [sic] was referred to DAP on 6 September 2018. DAP noted the amendments to the proposal in response to previous DAP recommendations and was supportive of the modifications particularly the continuous awning on George Street and King Street and the concrete cladding over the substation. In relation to the architectural expression of the podium building, DAP recommended a further refinement to simplify the façade including the colour palette to respond appropriately to the architectural language of the tower. In regard to the awning, DAP recommended the height of the awning to be lowered at the intersection of George Street and King Street to provide greater pedestrian amenity. 100. On 8 October 2018, a further set of amended drawings were submitted to address the comments provided by DAP at its meeting on 6 September 2018. The new awning along George Street and King Street has been extended to the north to provide additional weather protection from the George Street footpath to the through site link. The architectural expression of the podium building has been amended to reduce the extent of horizontal louvres and replace sandstone louvres with GRC cladding. … Notification, Advertising and Delegation (Submission(s) Received) 113. In accordance with Schedule 1 the Sydney DCP 2012, the proposed development is required to be notified and advertised. As such the application was notified and advertised for a period of 28 days between 2 May 2018 and 31 May 2018. As a result of this notification there were 9 submission(s) received, 6 of which are proforma and 3 unique submissions. [The Council responded individually to the nine submissions received which broadly concerned the height of the podium building, design excellence, the cl 4.6 application and whether additional floor space was available under the SLEP.] ... Public Interest 114. It is considered that the proposal will have no detriment effect on the public interest, subject to appropriate conditions being proposed.

[15]

Recommended conditions of consent (attachment A to the Brief)

Attachment A to the Brief contains recommended conditions which include: CONDITIONS OF CONSENT … (4) PARKING DESIGN Subject to the constraints of the existing basement structure, the he design, layout, signage, line marking, lighting and physical controls of all new or modified off-street parking facilities must comply with the minimum requirements of Australian Standard AS/NZS 2890.1 Parking facilities Part 1: Off-street car parking, AS/NZS 2890.2 Parking facilities Part 2: Off-commercial vehicle facilities and AS/NZS 2890.6 Parking facilities Part 6: Off-street parking for people with disabilities. The details must be submitted to and approved by the Principal Certifier prior to a Construction Certificate being issued for the construction stage relevant to the construction of the corner podium addition. … (16) FLOOR SPACE RATIO - CENTRAL SYDNEY The following applies to Floor Space Ratio: (a) The Floor Space Ratio of the proposal must not exceed 13.2 calculated in accordance with the Sydney Local Environmental Plan 2012. For the purpose of the calculation of FSR, the Gross Floor Area of the approved development is 44,270sqm. (b) Prior to an Occupation Certificate being issued, a Registered Surveyor must provide certification of the total and component Gross Floor Areas (by use) in the development, utilising the definition under Sydney Local Environmental Plan 2012 applicable at the time of development consent, to the satisfaction of the Principal Certifier. (c) Prior to a Construction Certificate being issued, Council's written verification must be obtained, confirming that 1,424sqm of heritage floor space was allocated (purchased and transferred) to the development, being that gross floor area in excess of 12.65:1 as specified in the Sydney Local Environmental Plan 2012. …
Development consent DA/2018/405 was granted subject to the above conditions inter alia.

[16]

Relevant information for CSPC

The relevant information to the Brief for the CSPC dated 5 December 2018 (Relevant Information) provided: Background At its meeting on 15 November 2018, the Central Sydney Planning Committee (CSPC) resolved to defer the matter following receipt of a late submission prepared by Boskovitz Lawyers on behalf of Politics Pty Ltd (owner of 365 George Street, Sydney). The CSPC resolved to seek further advice from City officers as well as to enable the applicant to consider the issues raised in the submission. In summary, Boskovitz Lawyers submits that the assessment report has failed to adequately consider relevant clauses of the Sydney Local Environmental Plan (SLEP) 2012 in relation to the requirement for a site specific development control plan (DCP) and competitive design process. The submission also states that the amendments to the proposed design are substantial with potential environmental impacts and warrant re-notification in accordance with provisions under the Sydney Development Control Plan (SDCP) 2012. The submission also states that the applicant's Clause 4.6 written justification seeking to vary the FSR development standard does not adequately address the matters for consideration and the CSPC cannot grant approval to the proposal in its current form. The City's planning officers and legal advisers have reviewed the submission and relevant clauses from the planning controls. The matters raised in the submission are detailed and addressed as follows: 1. Council has failed to adequately consider the provisions of Clauses 6.21 and 7.20 of the Sydney LEP 2012 requiring the preparation of a site specific DCP and undertaking a competitive design process. As such, consent cannot be granted for the development. Response: In accordance with Clause 7.20 of the SLEP 2012, the subject site has an area greater than 1,500sqm and requires the preparation of a site specific DCP unless the consent authority is satisfied that such a plan is unreasonable or unnecessary in the circumstances or that the development includes the following: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings or the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. As discussed in the assessment report, the preparation of a DCP to enable alterations to the existing lower levels of the tower and erection of a new 5 storey podium building is considered unnecessary as: • The new works are contained within the forecourt and less than 1,500sqm; does not exceed the maximum 55m height control and does not substantially alter the form of the existing tower; • The proposal, as amended in consultation with the Design Advisory Panel (DAP) and City officers, provides a building that appropriately addresses the public domain, is consistent with the predominant street wall height of podium buildings along both George and King Streets; • The proposal improves pedestrian amenity, particularly weather protection and contributes to the retail and commercial nature of the locality; and • There are no adverse environmental or amenity impacts on pedestrians or adjoining properties. Having regard to the site constraints, including the retention of the existing tower, preparation of a site specific DCP is considered unnecessary in the circumstances as it is unlikely the process will result in a substantially different building envelope to that currently proposed. Should the CSPC be satisfied that the preparation of a site specific OCP is unreasonable or unnecessary in the circumstances, it is not required to be satisfied that the proposal also achieves the matters identified in subclause (a) to (d). Clause 6.21 of the SLEP requires the consent authority to be of the opinion that the proposed development exhibits design excellence subject to the matters for consideration in Clause 6.21(4)(a)-(d). In this regard, City officers have discussed in the assessment report how the proposal, as amended, satisfactorily addresses design excellence and will not result in any adverse environmental impacts. In particular, the proposed additional retail and commercial floor space is consistent with the existing and proposed uses on the site and locality, the podium building complies with building height and street wall heights to define the street, will improve pedestrian amenity and activate the public domain. It is noted that the applicant is not seeking approval for additional floor space up to 10% above the maximum FSR as permitted under Clause 6.21(7) of the SLEP 2012. Clause 6.21(6) of the SLEP does not require a competitive design process to be undertaken if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances or the development satisfies the criteria under subclauses (a) to (d), as follows: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings and the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. A competitive design process is considered unreasonable and unnecessary in the circumstances that the new podium building is not greater than 55m in height, does not have a capital investment value of more than $100,000,000 and is not required to prepare a DCP under Clause 7.20, for reasons outlined above. The applicant undertook a pre-DA lodgement informal design competition involving three architect firms, namely Grimshaw, Make and FJMT. At the conclusion of the informal design competition, the design by FJMT was selected as the preferred scheme. On 8 June 2017, a summary of the informal design competition with details of the winning scheme was presented to the Design Advisory Panel (DAP) to seek pre-DA lodgement advice on scale, materiality and public domain interface. … DAP provided advice at pre-lodgement and during the assessment process with recommendations to refine the detailed design to reduce the scale of the podium building, align the podium to the corner of George Street and King Street, simplify architectural expression and materials to complement the character of the existing tower, enhance pedestrian amenity. The amended proposal has incorporated the recommendations into the design and is supported. 2. Re-notification of amended plans. Response: Compared to the notified plans, the amended proposal includes a reduction in building height, provision of a continuous awning along George Street and King Street, and simplification of the facade treatment. The amendment adequately addresses issues raised by City officers, the DAP and submissions. In accordance with Section 1.3 in Schedule 1 of the SDCP 2012, an amended proposal is re-notified "if the amendments are considered to result in significant additional environmental impacts". In this regard, the amendments are not considered to have any significant additional environmental impacts on adjoining properties or the public domain and therefore re notification is not required. 3. The applicant's Clause 4.6 written justification for non-compliance with the FSR development standard is insufficient and approval cannot be granted. Response: The applicant has submitted a revised Clause 4.6 written justification in which provides additional considerations to address the objectives of the FSR development standard. The applicant's amended Clause 4.6 written justification submits that the proposal achieves the objectives of the FSR development standard despite non-compliance with the numeric standard as follows: Objective A - to provide sufficient floorspace to meet anticipated development needs for the foreseeable future • Additional retail and commercial floor space contributes to the supply of tenancies within Central Sydney to accommodate additional workers forecasted in the Central Sydney Planning Strategy. • The upgrade of services and tenancies in the existing tower improves amenity for occupants, improves competitiveness of the building and Central Sydney in meeting future needs of businesses and the community. Objective B - to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic. • The proposal has a FSR of 13.2:1 which exceeds the maximum FSR of 12.65:1 for the site. It is noted that surrounding sites are subject to a maximum FSR (including additional accommodation floor space) Central Sydney is 12.5:1. A further additional FSR of up to 10% (total of 13.75:1) may be achieved, subject to successfully undertaking a competitive design process and a proposal exhibits design excellence. The applicant submits that the FSR development standard for the site and surrounding properties indicate that the controls contemplate the potential for sites to achieve a FSR of 13.75:1. • Although the proposal exceeds the maximum FSR of 12.65:1 for the site, it does not exceed the potentially achievable FSR of 13.75:1, should a competitive design process be undertaken seeking additional FSR. • The historic development of the site envisaged a podium building built to the street alignment on George Street and King Street and included alternative pedestrian pathways through the site. Whilst a podium building defining both street frontages was not constructed in conjunction with the tower, the proposal seeks to erect a podium building that is consistent with the original design intent for the whole site. • The form and scale of the proposed podium building responds appropriately to the surrounding urban context comprising of retail podiums with towers above. Given the existing tower exceeds the FSR standard, further exceedance of the development standard is required to enable a podium to define the street alignment at the prominent street corner of George Street and King Street. • The proposal satisfies the objectives and provisions for built form in the SDCP 2012 by defining the public domain, reinforcing the streetscape and complimenting the street wall height of surrounding properties. In this regard, the proposal will not have any adverse impacts on the significance of surrounding heritage items. • Although the proposal seeks additional floor space, the total number of car parking spaces will be reduced and additional bicycle parking facilities provided to minimise traffic generation in the locality. • The proposed through site link generally satisfies the objectives to enhance pedestrian amenity as an alternative pathway is provided to the pedestrian network within Central Sydney. Objective C - to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. • The proposed alterations and additions are limited to the lower levels of the existing tower. Having regard to the scale of the existing tower, the additional floor space contained in the lower levels of the tower is contextually appropriate and will not have any adverse impacts on existing or planned infrastructure servicing the site. In accordance with Clause 4.6, the CSPC may grant consent to the proposal if it is satisfied that the applicant's written request, as amended, has adequately addressed the matters as follows: (a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and (b) That there are sufficient environmental planning grounds to justify contravening the development standard. The applicant's now revised Clause 4.6 variation, in the opinion of City officers, is that it provides a more robust justification as to why compliance with the FSR is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify the contravention of the development standard. 4. The justification for non-compliance with Clauses 6.21 and 7.20 are not appropriate and are inadequate. …

[17]

Revised cl 4.6 application

Attachment A to the Relevant Information was the revised cl 4.6 variation application (cl 4.6 application) submitted by the Second and Third Respondents to the Council dated 28 November 2018 and provided: 2.0 Development Standard to be Varied The development standard that is sought to be varied as part of this application is Clause 4.4 of the SLEP, relating to the maximum FSR. Under the SLEP, the site is afforded a base FSR of 8:1 however, several provisions in the SLEP are available to achieve an FSR beyond 8:1, including: • Clause 6.4 Accommodation floor space: - The site is identified as "Area 1" on the SLEP FSR map where Clause 6.4(b) stipulates that a building used for the purpose of an office premises, business premises or retail premises is eligible for an additional 4.5:1. • Clause 6.5 Car parking reduction floor space: - Clause 6.5 allows any area of a basement previously used for car parking that is being removed for any other use is eligible for the amount of parking being removed as additional floor space. • Clause 6.6 End of journey floor space: - Clause 6.6 stipulates that a commercial building which provides areas dedicated as end of journey facilities is eligible for additional floor space to the value of the area dedicated. … Table 1 Permissible FSR (based on a site area of 3,353m2) Type of Floor Space Control Gross Floor Area Total FSR Base Floor Space (cl 4.4) 8:1 26,824m2 Accommodation Floor Space (cl 6.4) 4.5:1 15,088.50m2 Car Parking Reduction Floor Space* (cl 6.5) 85m2 End of Journey Floor Space* (cl 6.6) Up to 0.3:1 419m2 Total 42,416.5m2 12.65:1

[18]

3.0 Nature of Variation Sought The maximum FSR on the site under the SLEP for this application is 12.65:1. The existing building on the site comprises 42,596m2 of GFA which equates to a total FSR of 12.7:1, therefore the existing building is already in excess of the maximum floor space development standard applicable under the SLEP and any addition (small or large) would require a variation to the maximum FSR development standard through clause 4.6. The proposed development seeks consent to increase the total GFA by 1,674m2 (3.9%) which would result in a total FSR of 13.2:1 on the site. Of this increase, the following aspects would be permissible without the need to seek variation to the development standard under Clause 4.6: • 419m2 is categorised as "End of Journey Floor Space" in accordance with Clause 6.6 of the SLEP; and • 85m2 is categorised as "Car Parking Reduction Floor Space" in accordance with Clause 6.5 of the SLEP. This variation therefore seeks consent for the balance of the proposed additional floor area, which equates to an additional 1,170m2 of GFA, which equates to an additional FSR of 0.34:1. It is noted that the site is subject to a restrictive covenant, in favour of City of Sydney Council which imposes a maximum FSR of 13.4:1 on the site, measured in accordance with the Central Sydney LEP 1993 or any instrument that replaces that environmental planning instrument. If approved, the total FSR of the site will be 13.2:1 and accordingly, the proposal does not seek to realise the maximum FSR possible under the site's restrictive covenant. A summary of the floor space ratio for which consent is sought is provided below in Figure 1. … 4.0 Clause 4.6(3)(a): Compliance with the Development Standard is Unreasonable or Unnecessary in the Circumstances of the Case In Wehbe, Preston CJ of the Land and Environment Court provided relevant assistance by identifying five ways in which it could be shown that a variation to a development standard was unreasonable or unnecessary. However, His Honour in that case (and subsequently in Initial Action) confirmed that these five ways are not exhaustive; they are merely the most commonly invoked ways. Further, an applicant does not need to establish all of the ways. While Wehbe related to objections made pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1), the analysis may be of assistance in applying clause 4.6 given that subclause 4.6(3)(a) uses the same language as clause 6 of SEPP 1 (see Four2Five at [61] and [62]; Initial Action at [16]). The five methods outlined in Wehbe are: 1. The objectives of the standard are achieved notwithstanding non-compliance with the standard (First Method). … In this instance, the First Method is of particular assistance in establishing that compliance with a development standard is unreasonable or unnecessary. 4.1 The objectives of the development standard are achieved notwithstanding the non-compliance (First Method) The objectives of the maximum FSR development standard contained in Clause 4.4 of the SLEP are: a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality. The proposal is assessed against the objectives for the FSR development standard below. Objective A - to provide sufficient floor space to meet anticipated development needs for the foreseeable future … Objective B - to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic Density of Development The density of the development within the City of Sydney is regulated by the FSR controls within the SLEP. Most commercial developments in the Central Sydney area are able to achieve a maximum FSR of 12.5:1 under the current provisions of the SLEP. This maximum FSR is increased to 13.75:1 if commercial developments can fully utilise the 10% floor space bonus awarded for design excellence and where a competitive design process has been held in accordance with the City of Sydney Competitive Design Policy. Such a process has not occurred in this instance and, consequently, the 13.75:1 maximum is not available (albeit the proposed development does exhibit design excellence). The proposed development would result in a building on the site with a total FSR of 13.2:1, which is less than the maximum theoretically possible under the SLEP 2012 (13.75:1). … Built form ... Land Use Intensity The proposed development will increase the total GFA on the site, and therefore the land use intensity, by just 3.9%. This is appropriate in the circumstances of this case for two key reasons: • Firstly, the total FSR of the building (13.2:1) will be less than the total permissible FSR of a commercial building on the site if the development were to have undertaken a competitive design process (13.75:1). Although, as outlined above, the building does exhibit design excellence, it is acknowledged that because no formal competitive design process has been undertaken the total permissible FSR of 13.75:1 does not technically apply to this development. Nevertheless, this fact demonstrates that, in relation to land use intensity, a building of a scale and intensity greater than that currently proposed is envisaged in this location and that therefore this development is consistent with this part of this objective. … Control Generation of Pedestrian Traffic The provision of a through-site link will improve the CBD pedestrian network by providing a safe and activated pedestrian path between two of the CBD's most active streets. Objective C - to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure The proposed development involves additions to an existing 30 storey commercial tower, however, no works or additional floor space is proposed above Level 5 under this application. As such, in the context of the entire building the proposed 1,674m2 of floor space uplift is not significant and will not create an intensity of development that is incompatible with the Site's CBD location. As previously noted, the proposed development would result in a building on the site with a total FSR of 13.2:1, which is less than the maximum theoretically possible under the SLEP 2012 (13.75:1). The proposed 3.9% increase in total floor area envisaged by this development application is demonstrably commensurate with the existing and planned infrastructure of the surrounding area. The site is well located to maximise benefits that will be available from recent significant NSW Government infrastructure investments. Specifically, the site directly adjoins the CBD Light Rail network that is currently under construction and is approximately 250m from the future Martin Place Metro Station. The Central Sydney Planning Strategy notes that by 2036 we will need close to 420,000 workers accommodated within Central Sydney. In their preparation and endorsement of the commercial growth envisaged by the Strategy Council will have undertaken a reconciliation with existing and planned infrastructure. Therefore our additional 1,674m2 (1,170m2 of which is sought as part of this variation request) is a minor consideration in the overall scheme of the CBD and hence limited and marginal impact on existing and planned infrastructure. Objective D - to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality Desired Character of Locality … 5.0 Clause 4.6(3)(b) There are Sufficient Environmental Planning Grounds to Justify Contravening the Development Standard Clause 4.6(3)(b) of the SLEP 2012 requires the consent authority to be satisfied that the applicant's written request has adequately addressed clause 4.6(3)(b), by demonstrating: That there are sufficient environmental planning grounds to justify contravening the development standard. The environmental planning grounds relied on in the written request under Clause 4.6 must be sufficient lo just contravening the development standard. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole. Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action v Woollahra Municipal Council [24] and Turland v Wingecarribee Shire Council [42]). In this instance the relevant aspect of the development is the additional floor space that exceeds the development standard. It is also pertinent to note that the existing building already exceeds the relevant maximum FSR development standard, and therefore any addition of floor space would require a further variation to that standard. There are sufficient environmental planning grounds to justify a flexible approach to the application of the FSR control as it applies to the site. In Four2Five, the Court found that the environmental planning grounds advanced by the applicant in a Clause 4.6 variation request must be particular to the circumstances of the proposed development on that site. The applicable circumstances that relate to the site are discussed below. When it was originally constructed, the John Andrews designed building included a podium and forecourt that defined the street edge whilst enhancing pedestrian connectivity with a through-site link from King Street to George Street (refer to Figure 2). However, podium design modifications undertaken in 1997 diminished the strong corner address and removed the public through-site link. In recognition of the prominent location of the site and the diminished podium qualities, the co-owners of the property appointed world renowned architects, FJMT, to design a podium concept that sympathised and restored key elements of the original intent/design. The resulting building form, which is now proposed, has a number of advantages when compared to the current design, these advantages are summarised below. 5.1 Street Activation … 5.2 Pedestrian Amenity … 5.3 Defining the Corner … 5.4 Pedestrian Experience … 5.5 Consistency with the Objects of the Environmental Planning and Assessment Act 1979 … 5.6 Summary … It is not possible to deliver the numerous and significant improvements listed above without introducing new built form (and therefore GFA) to the corner of the site. Because the existing building, which has an FSR of 12.7:1 already exceeds the maximum permissible FSR (including available bonuses) for this building, which is 12.65:1, in order to avoid the requirement to vary the maximum FSR development standard any development would have to remove GFA from the building. To avoid the requirement to request a variation to the maximum FSR development standard GFA would have to be removed from the building commensurate with any addition, and also equal to the amount of the existing exceedance (0.05:1). This would clearly lead to a sub-optimal outcome and would be likely to undermine the design integrity, form, and functionality of Andrews' existing tower. By allowing a variation to the "maximum FSR" development standard in this instance, an opportunity is presented for the proposed development to allocate additional floor space to achieve the benefits discussed above and improve the existing building's relationship with the surrounding development and the relevant DCP controls. In this regard, there are sufficient environmental planning grounds to justify contravening the development standard. The proposed additional floorspace sought in this Clause 4.6 better allows the built form on the site to achieve the desired future character of the locality, as expressed under the DCP, as compared to the do nothing (no net increase in GFA) scenario. 6.0 Clause 4.6(4)(A)(ii) The Proposed Development Will Be In The Public Interest Because It Is Consistent With The Objectives Of The Particular Standard And The Objectives For Development Within The Zone In Which The Development Is Proposed To Be Carried Out 6.1 Consistency with the objectives of the development standard The proposed development is consistent with the objectives of the FSR development standard, for the reasons discussed in Section 4.1 of this report. 6.2 Consistency with the 88 - Metropolitan Centre objectives Objective A - To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy This proposal will facilitate upgrades to an existing commercial building commensurate to contemporary market expectations within the CBD. The proposed development will deliver a built-form outcome that is more consistent with the surrounding buildings, the public domain, and with the provisions of the DCP. In order to achieve this improvement, it is necessary to add a building element, and associated floor space, to the comer of George Street and King Street. Because the existing building exceeds the maximum FSR development standard, any addition of floor space to the existing building will require a variation to this development standard under Clause 4.6. Objective B - To provide opportunities for an intensity of land uses commensurate with Sydney's global status The proposed development involves additions to an existing 30 storey commercial tower, however, no works or additional floor space is proposed above Level 5 under this application. As such, in the context of the entire building the proposed 3.9% increase in floor space uplift is not significant and will not create an intensity of development that is incompatible with the site's CBD location especially in the context of planned infrastructure upgrades such as the Sydney Light Rail. Further, the Central Sydney Planning Strategy notes that by 2036 we will need close to 420,000 workers accommodated within Central Sydney, steep increases in rents and the conversion of many commercial properties to residential use have recently placed additional strain on the supply of commercial floor space in the Sydney CBD. The proposed development will allow for an increase in commercial/retail GFA in an appropriate location to help meet this projected demand and offset some of the recent CBD commercial to residential conversions. In delivering the proposed upgrades to the streetscape, the development will vastly increase the amount of activated street frontages in this area. Delivering an activated street frontage directly adjacent to the new light rail will encourage pedestrian activity along the newly pedestrianised George Street. The placement and design of the floorspace therefore enhances the pedestrian experience, encouraging non private vehicle use of the site and locality. Objective C - To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and wider community The proposal does not seek to change the existing commercial use of the building. Rather, it will allow upgrades to an existing building commensurate to current market expectations of commercial buildings within Central Sydney. The proposed development will generally diversify the commercial floor plate and retail offerings to attract a long term tenant and will activate the ground plane with a high quality retail layout and a public through-site link. … 8.0 Conclusion … The SLEP applies a maximum FSR for the site of 12.65:1 when taking into account relevant floor space bonuses. The existing development has been lawfully constructed and comprises an FSR of 12.7:1, therefore the existing building is already in excess of the maximum floor space allowable under the SLEP. The proposal seeks floor space uplift of 1,674m2 which equates to an FSR of 13.2:1. Of this additional FSR: • 419m2 is categorised as "End of Journey Floor Space" in accordance with Clause 6.6 of the SLEP; and • 85m2 is categorised as "Car Parking Reduction Floor Space" in accordance with Clause 6.5 of the SLEP. This variation therefore seeks consent for the balance of the proposed additional floor area, which equates to an additional 1,170m2 of GFA, or an additional FSR of 0.34:1.

[19]

Statement of environmental effects

A statement of environmental effects (SEE) was submitted to the Council by the Second and Third Respondents dated 5 April 2018. It considered matters such as design excellence and sought waiver of the design competition under cl 6.21 for reasons such as the DAP process engaged in.

[20]

DAP advice sheet no 37/2017 dated 8 June 2017

The DAP was presented with three proposals arising from an informal design competition held before the preparation of DA/2018/405. Its comments and recommendations made on 8 June 2017 in relation to these were documented in advice sheet no 37/2017.

[21]

DAP advice sheet no 43/2018 dated 7 June 2018

The DAP was presented with DA/2018/405. Its comments and recommendations made on 7 June 2018 are documented in advice sheet no 43/2018.
Unfortunately some references to the Brief in the Applicant's written submissions do not reflect page/paragraph references in exhibit B. The Court has had regard to the evidence referred to in the hearing by all parties. Where an unclear reference has been identified, the equivalent paragraph reference has been included in brackets.

[22]

Ground 1 - clause 4.6 application

Ground 1 of the amended summons stated as follows: 16 The CPSC [sic] erred by: (a) asking the wrong question under cl 4.6(4)(a)(i) of the SLEP or otherwise failing to have regard to a mandatory consideration; Particulars The CPSC [sic] failed to consider whether the Clause 4.6 Application demonstrated that the particular objectives of cl 4.4 of the SLEP were satisfied notwithstanding non-compliance with that clause and instead asked other questions. (b) asking a further wrong question under cl 4.6(4)(a)(i) of the SLEP; Particulars The CPSC [sic] failed to focus on the aspect of the development that contravened the FSR standard and instead focused on the benefits of the development as a whole. (c) asking the wrong question, proceeding from a fundamental misunderstanding or otherwise erring in law under cl 4.6(3), (4) and (5) of the SLEP; and Particulars The CPSC [sic] formed its satisfaction (if any) under cl 4.6(4) of the SLEP by reference to and on the basis of the Clause 4.6 Application. The Clause 4.6 Application was misdirected. The relevant contravention of the FSR development standard was 0.55:1. However, the Clause 4.6 Application only sought to justify a contravention of 0.34:1. Further, the CPSC [sic] appears to have erroneously believed that the excess floor area was 1,424 sqm or 1,603.5 sqm when, in fact, the excess floor area was 1856.5 sqm: see Condition 16(c). (d) having regard to an impermissible and/or irrelevant consideration, acting unreasonably or otherwise erring in law. Particulars In deciding that the proposed development was in the public interest, the CPSC [sic] had regard to the potential for the development to receive a bonus FSR under cl 6.21(7)(b) of the SLEP. However, the potential to receive a bonus FSR did not arise unless and until a competitive design process had been held, and no such process had been held. Further, the CPSC's [sic] conclusion was not open to it on the material before it or was otherwise formed erroneously. 17 Alternatively, the CPSC [sic] erred because: (a) the Clause 4.6 Application was invalid; and Particulars In order to be valid the Clause 4.6 Application needed to seek to justify a contravention of the FSR development standard. The relevant contravention of the FSR development standard was 0.55:1. However, the Clause 4.6 Application only sought to justify a contravention of 0.34:1. Further, in order to be valid, the Clause 4.6 Application needed lawfully to demonstrate the matters in clause 4.6. The Clause 4.6 Application did not lawfully demonstrate those matters because it proceeded from the erroneous assumption that the variation to the FSR was only 1,170m2. (b) the CPSC [sic] could not decide to grant consent to the Development Application unless it had considered a valid application under clause 4.6(3) of the SLEP.

[23]

Applicant's submissions

During the hearing the Applicant identified seven alleged errors of law which purported to incorporate the particulars in pars 16 and 17 of the summons.
Particular 1, the cl 4.6 application was invalid because: 1. it did not seek to justify the contravention. Clause 4.6(3) states there must be a "written request from the applicant that seeks to justify the contravention of the development standard"; 2. it asked the wrong question and proceeded from an error of law: Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 (Rebel MH (LEC)) at [65] and [90]. Clause 4.6(3) states there must be a "written request from the applicant that seeks to justify the contravention of the development standard by demonstrating [the identified matters]".
The cl 4.6 application did not seek to justify the relevant contravention of the FSR development standard as required by cl 4.6(3). The application only sought to justify a contravention of an additional 1,170 square metres which equates to an additional FSR of 0.34:1. In fact, the contravention required was 0.55:1 or 1,853.5 square metres. The error arose because the Second and Third Respondents double-counted the extra floor space to which they were entitled under cll 6.5 and 6.6. They counted that floor space towards the permissible FSR and then also subtracted it from the total actual FSR. This error is fundamental and vitiated the cl 4.6 application because it did not seek to justify the relevant contravention. Further the grounds in the cl 4.6 application were misdirected. A cl 4.6 application which proceeds upon a fundamental misunderstanding should be rejected: Rebel MH (LEC) at [89]-[94], [107].
Particular 2, the CSPC constructively failed to exercise jurisdiction and/or failed properly to consider the cl 4.6 application. It purported to grant the request, but instead granted something else. The consent authority must consider "a written request from the applicant that seeks to justify the contravention of the development standard": cl 4.6(3) of the SLEP.
Particular 3, the CSPC asked the wrong question. It asked whether the cl 4.6 application adequately addressed the criteria, not whether the criteria were in fact satisfied: cf Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 (Al Maha) at [21][23]. The preferred approach to the construction of cl 4.6(4) is the "alternative reading" suggested by Basten JA in Al Maha at [21]-[23] (Leeming JA agreeing at [41]) to the "literal reading" adopted by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action (LEC)) at [14]-[15].

[24]

Respondents' submissions (Council adopted Second and Third Respondents' submissions)

Clause 4.6 of the SLEP operated in this case because a written request was made under cl 4.6(3). The cl 4.6 application sought to justify contravention of the FSR by demonstrating both that compliance with the standard was unreasonable or unnecessary in the circumstances (the Brief at pars 41-43) and that there were sufficient environmental planning grounds to justify the contravention (Brief at par 44). The Brief stated at pars 48-52 that the proposed development would be in the public interest.
First, a consent authority is not required to directly form an opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b). It suffices if it is satisfied that an applicant's written request has adequately addressed those matters: Initial Action (LEC) at [25]. A consent authority is permitted but not required to come to its own view about the matters in cl 4.6(3) to determine a cl 4.6 application, Baron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61 (Baron) at [73]-[81]. Subject to the cl 4.6 application satisfying cl 4.6(3), the substantive content of the objection itself is otherwise not a jurisdictional fact that must be satisfied before the decision-maker can form the requisite state of satisfaction: Lane Cove Council v Orca Partners Management Pty Ltd (No 2) (2015) 208 LGERA 114; [2015] NSWLEC 52 (Orca) at [238] citing Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [60]-[64].
The question as to whether Basten JA's construction of cl 4.6 in Al Maha or Preston CJ's approach in Initial Action (LEC) is correct need not be determined. The CSPC thought the cl 4.6 application adequately demonstrated the matters required and there was material before the CSPC justifying it coming to this view itself.
Secondly, the proposed FSR as described in the cl 4.6 application is factually correct and that was properly the subject of the cl 4.6 application. The cl 4.6 application did not misdirect the CSPC. There are copious references to 12.65:1 in the documents that were before the CSPC on the date of the decision under review. It is explicitly cited in the cl 4.6 application (cl 4.6 application at section 3.0), Brief ("Proposal Summary", pars 27, 30-31, 37) and Relevant Information at section 3. It can be presumed that the CSPC was well aware of the current FSR control. There are equally unambiguous statements that the development would result in a total FSR of 13.2:1 on the site: cl 4.6 application (at sections 3.0, 4.1 and 8.0), Brief ("Proposal Summary", pars 27, 33, 37) and Relevant Information at section 3. Even if the difference between the maximum permissible FSR and that of the development was jurisdictionally relevant, the CSPC was fully cognisant of the extent of the exceedance above the 12.65:1 standard. The Brief stated at par 33 that the FSR of the development "exceeds the permissible FSR control by 0.55:1 (4.3%)".

[25]

Consideration

The objectives of the FSR control in the SLEP are identified in cl 4.4(1). Under cl 4.4(2) for land in Central Sydney the permissible FSR according to the FSR Map ("Area 1" on sheet 14 of the Floor Space Ratio Map) in the SLEP is 8:1. The SLEP provides for additional FSR to be allocated in certain circumstances. Additional FSR is available under cl 6.3 for various aspects of a development including car parking reduction floor space and end of journey floor space (cl 6.3(c)). Car parking reduction floor space and end of journey floor space are identified in cll 6.5 and 6.6 respectively. Utilisation of certain FSR requires the allocation of heritage floor space as identified in cl 6.11(1) as permitted by subcl (2).
A consent authority is empowered by cl 4.6 of the SLEP to authorise a contravention of a development standard, here the FSR controls in the SLEP. This power is constrained by cl 4.6(3)-(4), compliance with which is mandatory, as is clear from the terms of these subclauses and confirmed in several recent Land and Environment Court and Court of Appeal decisions: see Initial Action (LEC) at [13]-[14], [25]; Al Maha at [179] (Preston CJ of LEC, Leeming JA agreeing at [41]); Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 (Rebel MH (CA)) at [24] (Preston CJ of LEC, Gleeson and Payne JJA agreeing at [1] and [2] respectively). Rebel MH (CA) was handed down after the hearing in this matter.
There was no dispute that applying the SLEP in particular cll 4.4 and 6.3, the maximum permissible FSR for the site was 12.65:1 which equates to 42,416.5 square metres (eg Brief at par 31). The original development exceeded that already, having an FSR of 12.7:1 (cl 4.6 application at sections 3.0, 5.6, 8.0 and the Brief at "Proposal Summary", pars 27, 32). A variation of the FSR control of 0.55:1 was necessary to achieve a FSR of 13.2:1 (44,270 square metres) which was essential for the podium development, the new building component. The rest of the work the subject of the consent concerned alterations to the existing tower building which did not give rise to any additional FSR.
The briefing prepared by council staff correctly identified the amount of FSR sought as identified in the numerous references relied on by the Respondents in the Brief and amended cl 4.6 application.

[26]

Clause 4.6 application (amended summons par 17, particular 1)

The Applicant argues the cl 4.6 application was invalid because it was based on an error of law. Clause 4.6(3) requires that development consent not be granted for development that contravenes a standard unless in a written request an applicant seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (subcl (a)) and there are sufficient environmental planning grounds justifying the contravention of the standard (subcl (b)).
A written cl 4.6 application to vary the FSR development standard and a revised request was made by the Second and Third Respondents. Only the revised application need be referred to, extracts of which are set out above at [20]. Both applications were before the CSPC. The revised application clearly identified the FSR development standard as it applied to the site in section 2.0 "Development Standard to be Varied". Section 3.0 "Nature of Variation Sought" states that the proposed development sought consent to increase the FSR from 12.65:1 to 13.2:1. The written application addresses the matters in cl 4.6(3)(a) and (b) as required to seek to justify the contravention. Section 4.0 concerns cl 4.6(3)(a), referring to Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) and stating that the first method identified in that case was relied on, namely that the objectives of the standard would be achieved notwithstanding non-compliance with a standard. That issue is addressed in section 4.1 in relation to the four objectives in cl 4.4(1) of the SLEP. Objective (a) is to provide sufficient floor space to meet anticipated development needs for the foreseeable future and is addressed in the application. The application states the additional floor space will facilitate a new high-quality retail and commercial podium. Objective (b) to regulate the density of development and built form and control the generation of pedestrian traffic inter alia is addressed extensively in relation to density of development, built form and land use intensity. Objective (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure is also addressed. Objective (d) to ensure that new development reflects the desired character of the locality in which it is located is also addressed. Wehbe considered SEPP 1, the predecessor to cl 4.6 of the SLEP, which had broadly similar intent, as identified in cl 3 and implemented in cll 6 and 7 of SEPP 1, extracted above.

[27]

Consideration under cl 4.6(4) (amended summons par 16, particulars 2-7)

Under cl 4.6(4)(a)(i) a consent authority must be satisfied that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and under cl 4.6(4)(a)(ii) that the proposed development is in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
The City of Sydney Act establishes the CSPC as a statutory corporation performing specified functions. As the Council submitted, the CSPC has expertise by virtue of the criteria for the appointment of members (s 34) and therefore can be assumed to be aware of relevant planning instruments. According to s 36 of the City of Sydney Act, it has access to the Council's records and staff. It is not a delegate of the Council. A number of the authorities relied on by the Applicant are not relevant as they concerned a decision by a delegate, such as Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [33]-[35] (Gageler and Keane JJ) and Gold and Copper Resources Pty Ltd v Minister for Resources and Energy (2013) 211 LGERA 196; [2013] NSWLEC 66 at [89]-[93].
The Brief prepared by council officers extracted above at [16] identifies the FSR variation accurately as seeking an FSR of 13.2:1 which required 0.55:1 more FSR. While 1,170 square metres was referred to, that was not the amount of square metres recommended for approval in the Brief. No criticism of the FSR considered in the Brief was made by the Applicant.
While the Applicant identified seven legal errors by the CSPC in Ground 1 they overlap and hinge on a selective reading of the material before the CSPC. As has been held on many occasions material before a decision-maker must be read as a whole and fairly: Walsh v Parramatta City Council at [67] citing Minister for Immigration and Ethnic Affairs v Wu Shang Liang at 291. Most of the legal errors rely on the error of fact in the cl 4.6 application concerning the amount of square metres sought by the Applicant. That is not the amount of FSR which was identified as appropriate in the Brief. It is difficult to distinguish between some of the arguments. As I have found that the cl 4.6 application addresses the requirements of cl 4.6(3) an important part of the underpinning of the Applicant's case does not arise.

[28]

Ground 2 - design excellence (cl 6.21 of the SLEP)

Ground 2 of the amended summons stated as follows: 18 The CPSC [sic] erred by: (a) failing to consider the mandatory matters in cl 6.21(4)(a)-(e) of the SLEP or otherwise misunderstanding the concept of design excellence in cl 6.21 of the SLEP; and (b) asking the wrong question, failing to ask the right question or otherwise erring in forming the satisfaction that a competitive design process would be unreasonable or unnecessary in the circumstances. Particulars The CPSC [sic] failed to ask whether the object in cl 6.21(1) of the SLEP would be achieved irrespective of compliance with cl 6.21(5). The CPSC [sic] had regard to matters referred to in cl 6.21(6)(a)-(d) in purporting to answer the distinct question of whether compliance with cl 6.21(5) was unreasonable or unnecessary. The CPSC [sic] had regard to whether the building exhibits design excellence in deciding whether to waive the requirement for a competitive design process. However, the requirement for a competitive design process is distinct (and additional to) the requirement that the consent authority be satisfied that the development exhibits design excellence. Further, the CPSC's [sic] conclusion was not open on the evidence before it and was otherwise formed erroneously.
The evidence set out above relevant to this ground is the Brief ("Proposal Summary", pars 16-19, 27, 55, 58-68), the cl 4.6 application and the Relevant Information (sections 1, 4-6).
The design for the site underwent change as a result of a process whereby the Council's DAP reviewed the design and suggested changes: see DAP advice sheets at [22] and [23] above; Brief at pars 96-97, 99-100.

[29]

Applicant's submissions

Clause 6.21(3) and subcl (4) applies to this DA. Formation of the opinion in cl 6.21(3) is mandatory: Local Democracy Matters Incorporated v Infrastructure NSW (2019) 235 LGERA 378; [2019] NSWLEC 20 (LDM (LEC)) at [121]. What must demonstrate design excellence is the development not the building: MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211 (MGT 6) at [85]; Stamford Property Service Pty Ltd v City of Sydney [2015] NSWLEC 1189 (Stamford) at [152]. Consideration of subcl (4) matters is mandatory: Stamford at [123]-[124], [126] (Pearson C and Smithson AC). The CSPC failed to form the necessary opinion of design excellence as found in cl 6.21(1) when it granted development consent. There is no express or implied reference to it doing so.
Clause 6.21(5) applies because first, the development was directly related to and "in respect of" a building that had a height above ground level of more than 55 metres. The development was in respect of the tower on the site (which was well more than 55 metres: Brief at pars 27 and 55) because it concerned alterations to this tower. This is evident from the Brief at 2.4, "Proposal Summary", par 63 and the cl 4.6 application at section 4.1. The SEE indicated that the proposed development was related to the tower: at sections 1.0, 2.2, 3.0 and 3.5. Secondly, the development was development in respect of which a development control plan (DCP) was required to be prepared under cl 7.20. That is so even though a waiver of cl 7.20 was granted. Clause 6.21(5)(c) must be construed as referring to the application of cl 7.20 prior to any waiver otherwise an applicant for consent could not know in advance of a cl 7.20 waiver decision whether cl 6.21(5) applied.
According to cl 6.21(6) a competitive design process is not required under cl 6.21(5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances or other criteria are met. The CSPC erred in law in dispensing with the need for a competitive design process under cl 6.21(5).
First, the only possible basis on which it could have been asserted that compliance with the standard was unreasonable or unnecessary was that the objective of the development standard was already achieved. This follows from cases that have construed the phrase "unreasonable or unnecessary" in the context of SEPP 1 and cl 4.6 applications. According to Winten at [27]-[29], when determining whether it would be "unreasonable or unnecessary" to comply with the relevant development standard in the context of SEPP 1, the question whether such compliance is "unreasonable or unnecessary" is anchored to the underlying objectives/purposes of the standard in question. In Orca, Sheahan J stated at [127] that cases on SEPP 1 (like Winten) remain relevant and useful when reliance is placed on similar dispensing powers such as cl 4.6. Accordingly, if his Honour in that case dealt with the phrase "unreasonable or unnecessary" in the context of a dispensing power like cl 4.6, the dispensing powers expressed in identical language in cll 6.21 and 7.20 attract the same principles. The objective of cl 6.21 is "to deliver the highest standards of architectural, urban and landscape design". Neither the CSPC nor the Brief referred to that objective. Even if the reasoning in the Brief rendered it open to find that the development would reach high standards of design, nothing in that reasoning rendered it open to the CSPC to find that the development would reach the highest standards of architectural design.

[30]

Second and Third Respondents' submissions

First, the CSPC was not obliged to make any specific finding to engage cl 6.21(6). The Applicant erred in replacing the wide discretionary formula of "unreasonable or unnecessary in the circumstances" with a requirement of positive satisfaction that the "highest" standard would be delivered in accordance with cl 6.21(6). Clause 6.21(1) employs aspirational, superlative language and alone provides no possible objective criterion by which to determine whether that standard has been achieved.
Secondly, the disjunctive "or" in the chapeau of cl 6.21(6) manifests a clear legislative intent that the exception is not limited to cases where a proposed development involves only minor alterations which satisfy the criteria in cl 6.21(6)(a)-(d). Those paragraphs do not qualify or constrain a consent authority's power to dispense with the requirement if satisfied that a formal competitive design process would be unreasonable or unnecessary in the circumstances. There is nothing however in the text of cl 6.21(6) which implies that the matters in subcll (a)-(d) are irrelevant considerations that cannot be taken into account in considering whether a formal design competition would be unreasonable or unnecessary.
Thirdly, there was no obligation on council officers to report on, or for the CSPC to consider, the Competitive Design Policy in relation to the development. This policy has significance for defining a "building demonstrating design excellence" under cl 6.21(9). However the proponents were not seeking cl 6.21(7) bonuses and the Competitive Design Policy has no application to the facts of this case.
Fourthly, council officers gave adequate reasons for why a competitive design process would have been unreasonable and unnecessary in the circumstances. The matter was discussed in the Brief at "Proposal Summary", pars 27, 58-68 and the Relevant Information at section 1. The CSPC was entitled to embrace these reasons and form the requisite opinion of satisfaction: LDM (LEC) at [139]. Moreover the informal process that was undertaken (the presentation of three designs to the DAP: Relevant Information at section 1 and DAP advice sheet no 37/2017) was nonetheless reflective of the Competitive Design Policy.
Fifthly, in properly exercising the discretion conferred by cl 6.21(5) the underlying objective of cl 6.21 need not be referred to. The Applicant's submissions are based on the construction of the phrase "unreasonable or unnecessary in the circumstances" in the context of cl 4.6 of the SLEP, a materially different regime. Further, this construction is based on Winten and Hooker, cases which examined whether compliance with development standards would be unreasonable or unnecessary in the context of another environmental planning instrument (EPI), SEPP 1. Clause 6.21 is a pre-condition to the grant of development consent, not a development standard. The objective of cl 6.21 was implicit in all that was done in relation to design excellence. This includes appropriate architectural transition and the fact that the proposal went to the DAP three times in a formal process and the DAP requested amendments which were adopted (DAP advice sheets above at [22] and [23], Brief at pars 96-97, 99-100).

[31]

Council's submissions

The Council adopted the submissions of the Second and Third Respondents with respect to Ground 2.
The asserted errors in the application of cl 6.21(6) offend the requirement to read the documents fairly and as a whole and not with a "fine appellate tooth- comb" (Minister for Immigration and Ethnic Affairs v Wu Shang Liang and Walsh v Parramatta City Council at [67]), and the principle that the mere failure to expressly refer to a matter does not of itself support the inference that the matter was not considered (Hill v Woollahra Municipal Council (2003) 127 LGERA 7; [2003] NSWCA 106 at [53] and 4nature Inc v Centennial Springvale Pty Ltd (2016) 218 LGERA 289; [2016] NSWLEC 121 at [149]). If the inference may be fairly drawn that the decision-maker did have regard to the relevant matter or that the decision-maker had impliedly taken the matter into account, this will be more than enough for a challenge to fail: LDM (CA) at [86] and NBDY v Minister for Immigration and Multicultural Affairs [2006] FCAFC 145 at [34]-[36]. The Applicant failed to discharge its onus that the CSPC did not consider the matters set out in cl 6.21(6) in deciding that a design competition would not be required.
The Council submitted that cl 6.21 does not apply as a matter of construction, notwithstanding the detailed consideration of it by the CSPC. Under subcl (5)(a) a competitive design process must be held for a proposed development which will be a height above ground level greater than 55 metres in Central Sydney inter alia. The alterations to the tower block were also included in the DA, a building more than 55 metres the refurbishment of which is below 55 metres. However the development in the consent is not "in respect of" that building. Rather it is in respect of the parts of the site where the building is not situated and proposes a new podium building of less than 55 metres, relying on Al Maha at [91] and [94] (Preston CJ of LEC) concerning the identification of the land to which a development is directed.
Secondly, the reference in cl 6.21(5)(c) to a DCP being required under cl 7.20 is a reference to the operation of the whole of that clause including its subclauses dealing with waiver. If the whole clause has operated to not require a DCP then cl 6.21(5)(c) is not triggered. The Applicant's construction of cl 6.21(5)(c) is erroneous because if correct it could equally apply to any cl 4.6 application which would mean that an applicant would need to submit a compliant proposal as well as a proposal that relied on a cl 4.6 application which is clearly wrong.

[32]

Consideration

The statutory construction of cl 6.21 of SLEP is required by this ground. Subclause (1) identifies the objectives of the clause. By virtue of subcl (2) the clause applies to the site and subcl (3) must be addressed by the CSPC. In forming the opinion under subcl (3) the matters in subcl (4) must be considered. In addition to these requirements, if subcl (5) applies a competitive design process must be followed in conformity with the Competitive Design Policy.

[33]

Does cl 6.21(5) apply at all?

The chapeau to cl 6.21(5) states that development consent must not be granted unless a competitive design process has been held for proposed development if according to subcl (a)(i) development is in respect of a building that has, or will have, a height above ground level greater than 55 metres on land in Central Sydney. The podium building is less than 55 metres as the Council emphasised. The tower building to which alterations are to be made is taller than 55 metres. The alterations will be less than 55 metres however. Nevertheless, I consider subcl (5)(a)(i) is in respect of a building that has a height above ground level greater than 55 metres.

[34]

Clause 6.21(3) satisfied in the opinion of CSPC

Subclause (3) is in mandatory terms. It requires that development consent not be granted unless in the opinion of the consent authority the proposed development exhibits design excellence. Design excellence is undefined. Subclause (4) states at some length what matters regard must be had to in determining if a proposed development exhibits design excellence.
Under subcl (6) a competitive design process required by subcl (5) is not required if the CSPC was satisfied that the process was unreasonable or unnecessary in the circumstances or that the development reflects the circumstances in cl (6)(a)-(d).
Subclause (7) is not relevant because the podium building is not a building demonstrating design excellence as defined in subcl (9) as no competitive design process was held. As the Second and Third Respondents submitted no bonuses as provided for in subcl (7) were sought by them. No issue in relation to subcl (8) was identified.
The following supports the conclusion that design excellence was considered by the CSPC and that the requisite opinion under cl 6.21(3) was formed: 1. the Brief specifically at [58]-[68]; 2. the consideration of design issues of the development on three occasions (June 2017, June 2018 and September 2018) by the DAP and the amendments made pursuant to recommendations of the DAP: DAP advice sheets at [22] and [23] above and Brief at pars 16-19, 63, 96-97, 99-100); 3. the submissions made on behalf of the Applicant in these proceedings by both its lawyer and consultant planner (exhibit B at pp 154-73); and 4. the Relevant Information (sections 1, 4, 5 and 6).
The threshold question of statutory construction which arises from the Applicant's submissions is the application of cl 6.21(1) in the context of the rest of the clause, particularly subcll (3) and (6). As the Respondents submitted, cl 6.21(1) specifies the overall objective for the clause. It is an overarching, aspirational objective to which the whole clause is directed. It is not expressly or impliedly called up as a mandatory relevant consideration in any other subclause. It does not require expressly or impliedly that a consent authority in making a determination under either subcl (3) or subcl (6) must decide that a development will deliver the "highest standard of architectural, urban and landscape design".

[35]

Ground 3 - waiver of DCP requirement (cl 7.20 of the SLEP)

Ground 3 of the amended summons stated as follows: 19 The CPSC [sic] erred by asking the wrong question, failing to ask the right question or otherwise erring in forming the satisfaction that preparation of a development control plan for the site was unreasonable or unnecessary. Particulars The CPSC [sic] failed to identify any objective served by the standard set out in cl 7.20. The CPSC [sic] failed to consider whether the matters in cl 7.20(4) were adequately addressed by the Proposed Development. The CPSC [sic] had regard to the size of the Proposed Development in circumstances where cl 7.20(1)(b) manifests a statutory policy that the standard apply so long as there is an increase in the gross floor area of an existing building and irrespective of the increase. The CPSC [sic] conflated issues under cl 6.21 with issues under cl 7.20. The CPSC [sic] failed to consider the impact of the formation of a satisfaction under cl 7.20(3) on the operation of cl 6.21. Further, the CPSC's [sic] conclusion was not open on the evidence before it or was otherwise formed erroneously.
The evidence relevant to this ground set out above is the Brief at pars 58-68, 113 and the Relevant Information at section 1.
As the site is greater than 1,500 square metres cl 7.20 potentially applies as specified in subcl (2)(a).

[36]

Applicant's submissions

Clause 7.20(3) of the SLEP confers the power to waive compliance with the requirement for a DCP under cl 7.20(2) if the consent authority is satisfied that it would be unreasonable or unnecessary in the circumstances. To determine whether a DCP would be unreasonable or unnecessary in the circumstances, it is necessary to discern the underlying objective of cl 7.20(2) which is gauged from the matters outlined in cl 7.20(4): MGT 6 at [96] (Martin SC and Dixon C). There were a number of errors arising from how cl 7.20 issues were addressed in the Brief and the Relevant Information.
First, the only possible basis on which there could have been a waiver of cl 7.20 was that the objectives of the development standard were otherwise achieved. That could not be done without an identification of the underlying objective of cl 7.20(2), but that was not done here. The Brief simply did not refer to that issue and it cannot be concluded that the CSPC did so (see Brief at par 67). Further without identifying the underlying objective of cl 7.20, the CSPC could not rationally or reasonably form the view that compliance was unreasonable or unnecessary.
Secondly, it was not possible to determine that compliance with cl 7.20 was unreasonable or unnecessary without considering whether the matters in cl 7.20(4) were otherwise adequately addressed in respect of the site and the development. The Brief did not refer to cl 7.20(4). The observations in section 1 of the Relevant Information were not directed to cl 7.20(4) and are further indicative of misdirection.
Thirdly, the Brief addressed issues under cl 6.21 concurrently with issues under cl 7.20. While there are similarities between the two clauses they are legally distinct. The two have different objectives and different subject matters. For example, the consideration in cl 7.20(4)(c)(xiv) (the incorporation of public art into the fabric of buildings in the public domain) is not applicable to cl 6.21. The failure to differentiate the two clauses founds an inference that the CSPC failed to address the correct question.
Fourthly, the legal consequence of the grant of a waiver under cl 7.20(3) may have included that cl 6.21(5) was no longer applicable. That was not referred to in the Brief and it can be inferred that the CSPC failed to appreciate that important legal consequence.

[37]

Respondents' submissions

The Applicant's reliance on MGT 6 was erroneous since it is a Class 1 decision and its reasoning in any event is inconsistent with the approach contended for by the Applicant (see at [97]).
First, it is apparent from the documents before the CSPC that it would have been well aware of the content of cl 7.20 and that its subject matter was legally distinct from cl 6.21. Even if the CSPC had been wrong on the facts, the impugned conduct would still fall far short of meeting the strict legal standard of unreasonableness.
Secondly, the applicability of cl 7.20(3) to the development is discussed in both the Brief at pars 58-68, 113 and the Relevant Information at section 1. Assessing whether a requirement is unreasonable or unnecessary in the circumstances inevitably involves a broad discretion. As with Ground 2, there is no legal error if the CSPC relies on the professional opinion of council officers. In any event, the assessment reached appeared perfectly rational in circumstances where the existing tower on the site was to be retained and a relatively small corner podium building well under 55 metres was being added.
Thirdly, there was no improper conflation of issues under cll 6.21 and 7.20. There are strong textual similarities between the dispensing powers in cll 6.21(6) and 7.20(3). In the circumstances of the site and proposed development, similar considerations were relevant under both cll 6.21(6) and 7.20(3). There is no requirement to specifically refer to a clause in an instrument that requires consideration be given to certain matters so long as in substance the matters were considered: Hill v Woollahra Municipal Council at [53].
Further it is not clear how if the above errors were established they would have vitiated the consent. Even where a matter that was required to be taken into account was not, this will not vitiate the decision if the failure did not materially affect the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 40 (Mason J).

[38]

Consideration

As the Respondents submitted the Brief and Relevant Information consider cl 7.20. In the Brief, cl 7.20(3) is expressly referred to at pars 59-60 and par 113. The Second and Third Respondents' reasons for why the requirement to prepare a DCP should be waived are outlined at par 60. The Brief at par 65 explains why the proposed development will not have adverse environmental impacts on surrounding properties and at par 66 that it is consistent with provisions for enhancing the public domain and pedestrian amenity inter alia. At par 67 it states that the preparation of a DCP is unreasonable and unnecessary given that the new podium building and additional floor space is contained predominantly to the south-western corner of the site and does not exceed the 55 metre height control for new buildings. Section 1 of the Relevant Information repeats what was stated in the Brief: that the preparation of a DCP was considered unnecessary since the development does not exceed the maximum 55 metre height control, there would be no adverse environmental or amenity impacts on pedestrians or adjoining properties, and it addresses the public domain. Additionally, the development would not substantially alter the form of the existing tower.
Clause 7.20 requires that a DCP be prepared which complies with subcl (4) in the circumstances specified in subcl (2)(a) inter alia. Under subcl (3) a DCP is not required if the consent authority considers that it is unreasonable or unnecessary or that the development reflects the circumstances in subcll (3)(a)-(d). Subclause (4) specifies what a DCP must include in some detail.
Clause 7.20 does not include a specific planning or other objective. It identifies a process which is a pre-condition to the grant of development consent. The clause does not expressly require that an objective be identified. The discretion of a consent authority under subcl (3) to determine if a DCP is unreasonable or unnecessary or that subcll (3)(a)-(d) apply to a development is therefore broad. Consideration of whether a DCP is unreasonable or unnecessary must be within the scope and purpose of the SLEP. As the parts of the Brief and Relevant Information identify, planning considerations were before the CSPC when it made its decision.
That an objective was identified in a Class 1 merits appeal, MGT 6, in entirely different circumstances where the Court was the consent authority provides no assistance to the Applicant in these judicial review proceedings. There was no failure on the part of the CSPC to identify or consider an objective of the clause.

[39]

Ground 4 - notification requirements

Ground 4 of the amended summons stated as follows: 20 The CPSC [sic] erred by: (a) failing to consider cl 1.3 of the Sydney Development Control Plan 2012 (Sydney DCP); (b) in the alternative, forming a view that was not legally open to it. Particulars It was not open to form the view that the Revised Plans did not have any additional environmental impacts.
The evidence relevant to this ground is identified above in the Brief at pars 96-100, 113 and Relevant Information at sections 2 and 5.

[40]

Applicant's submissions

The CSPC was obliged to consider the SDCP: EPA Act s 4.15(1)(a)(i). The requirements of a DCP must be given fundamental and focal consideration: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [70]-[75] (Spigelman CJ). Clause 1.3 of Sch 1 of the SDCP states that if an application is amended prior to determination (which occurred in this case), it will be re-notified if the amendments are considered to result in significant additional environmental impacts. Any such re-notification period may be reduced to 14 days if the likely additional environmental impacts are minor.
The Brief at 3.3 (par 113) contains no reasons identifying why the amendments created no "additional environmental impacts". The Relevant Information at sections 2 and 5 stated that the amendments were not considered to have any "significant additional environmental impacts on adjoining properties or the public domain" nor "additional environmental impacts on surrounding properties or the public domain" respectively. These references are inconsistent since both "additional environmental impacts" and "significant additional environmental impacts" are referred to in the Brief and the Relevant Information.
If the CSPC accepted what was in the Brief there were three problems. First, the Brief made no reference to cl 1.3 of Sch 1 of the SDCP. Secondly, it could not reasonably be said that the introduction of a continuous awning and the change from sandstone to cement (Brief at pars 97, 100) would not have additional environmental impacts. Thirdly, there was no analysis as to why there were no additional environmental impacts from an amendment which revealed more of the existing tower from the public domain and distinguished the new podium from the tower or an amendment which facilitated a rooftop food and beverage offering.
Fourthly, re-notification is required if there are additional environmental impacts save that the character of the impacts may warrant a reduction in the period. Otherwise the second sentence in cl 1.3 would have no function. There is no indication in the CSPC's materials that it understood this distinction.
If the CSPC accepted what was in the Relevant Information, there was a further problem: the Relevant Information did not refer to environmental impacts in general (as required by the SDCP). It instead referred to environmental impacts on two specific subject matters (adjoining properties and the public domain). There was therefore a misdirection of the CSPC.

[41]

Respondents' submissions

Ground 4 is another attempt to convert a merits complaint into a reviewable error. First, the re-notification process is subject to the exercise of discretion. There is no foundation for impugning that discretion especially where the criterion is "significant additional environmental impacts". The conclusion reached in the Relevant Information and adopted by the CSPC could only be vitiated if the Applicant established that it was unreasonable in the sense that it lacked "evident and intelligible justification" or was unreasonable in the Wednesbury sense: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]. That stringent test is not met in this case.
Secondly, contrary to the Applicant's submissions, the CSPC was not obliged to consider the SDCP under s 4.15(1)(a)(i) since a DCP is not an EPI per s 1.4 of the EPA Act. This DCP is not to be applied as if it were an EPI: DeAngelis v Pepping (2014) 203 LGERA 61; [2014] NSWLEC 108 at [151]-[153].
Thirdly, it was not legally necessary that the Brief expressly refer to the specific clause number in the SDCP. In any event cl 1.3 of Sch 1 was referred to in the Relevant Information at section 2.
Fourthly, the CSPC had to re-notify if it considered there were "significant additional environmental impacts". The second sentence in cl 1.3 of Sch 1 only applies if this threshold criterion is satisfied. It regulates the period of notification in instances where the additional significant environmental impacts are deemed to be minor.
The Council also submitted that it is clear from the EPA Act s 3.42(1) that DCP requirements are not mandatory statutory requirements. Zhang v Canterbury City Council was determined in 2001 when statutory provisions concerning DCPs were entirely different.

[42]

Consideration

As the Respondents submitted the SDCP requirements are a guide as identified in s 3.42(1) of the EPA Act. The issue of re-notification was referred to in the Brief and the Relevant Information so that the CSPC was informed about the issue. It can also be assumed to know about the contents of the SDCP for the reasons already stated about the role of the CSPC. Express reference to cl 1.3 of Sch 1 was not required or rather the absence of an express reference does not give rise to legal error.
While s 4.15(1)(a)(i) is not relevant to a DCP, under s 4.15(1)(a)(iii) of the EPA Act DCPs where applicable must be taken into consideration by a consent authority. The purpose of DCPs is identified in s 3.42(1). Relevant to this matter is subcl (2) which refers to s 3.43(1)(b)-(e) which enables a DCP to address public notification requirements under subs (1)(c). The SDCP does not specify a binding requirement so that its application will be at the discretion of the consent authority taking into account Zhang v Canterbury City Council which I consider still has application, contrary to the Council's submissions.
Given that legal position, this ground essentially raises matters of merit in that whether there was any additional environmental impact or whether changes in design had a significant environmental impact warranting re-notification was a matter for the CSPC to consider as a matter of merit. No evidence suggesting that such a conclusion was unreasonable was before me nor was that submitted by the Applicant. The Applicant's submissions concerning changes in design giving rise, in its view, to environmental impacts are irrelevant.
As that disposes of the ground it is strictly unnecessary to consider other arguments. One argument concerned the construction of cl 1.3 of the SDCP, which is not a model of drafting clarity. The first paragraph refers to notification of development giving rise to significant additional environmental impacts. The second paragraph states that likely additional environmental impacts considered to be minor may be advertised for a shorter period. The drafting is ambiguous. I prefer the Respondents' submission that the second sentence is to be read as clarifying the first sentence so that the second sentence operates only where re-exhibition is required and may truncate the time for exhibition. It does not operate to negate the first sentence as the Applicant's construction does under the guise of giving both sentences work to do.

[43]

Ground 6 - public interest (s 4.15(1)(e) of the EPA Act)

Ground 6 of the amended summons states as follows: 21 The CPSC [sic] erred by failing to consider community responses regarding the Proposed Development as an aspect of the public interest. Particulars The CSPC [sic] did not appreciate that community submission were themselves an aspect of the public interest and had that significance over and above the fact that they were made.
The evidence relevant to this ground is identified above in the Brief at pars 113 and 114 and the entirety of the Relevant Information.
The Applicant submitted that nothing in the materials before the CSPC could found an inference that the CSPC treated each of the public submissions made as themselves an aspect of the public interest. To the contrary the CSPC was impliedly invited to downgrade the importance of there being multiple submissions where those submissions were similar in content, see Brief at 3.6 (par 113). Further so far as the Brief addressed the public interest, it made no reference to the submissions (Brief at par 114). Section 4.15(1)(e) of the EPA Act obliged the CSPC to take into consideration the public interest which includes public submissions: Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited (2013) 194 LGERA 347; [2013] NSWLEC 48 (Bulga (LEC)) at [63]. Merely because the submissions were in the possession of the CSPC did not mean that it considered them.
Alternatively, the CSPC is separately constituted by the City of Sydney Act and is legally distinct from the Council. It cannot be assumed that public submissions in the possession of the Council were also in the CSPC's possession. When the CSPC granted consent, it did so as a delegate of the Council. Gold and Copper Resources Pty Ltd v Minister for Resources and Energy at [89]-[93] is applicable, which held that knowledge of material in the possession of a department could not be attributed to a delegate of a minister.
The Applicant did not dispute that except for one objector the remainder of objectors were entities related to the Applicant which have rival retail or commercial property interests in the vicinity (tabs 21-28, 41 of exhibit B).
I agree with and adopt the Respondents' submission that no legal error is identified in this ground. The requirement to consider the public interest in s 4.15(1)(e) of the EPA Act operates at a high level of generality and does not of itself require that regard be had to any particular aspect of public interest: Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 at [41]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [299]. A consent authority that has considered submissions pursuant to s 4.15(1)(d) is not obliged under the EPA Act to repeat that exercise by separately taking them into account as an aspect of the public interest.

[44]

Ground 7 - multiple departures from default provisions in SLEP

Ground 7 of the amended summons states as follows: 22 The CPSC [sic] erred by failing to take into account the cumulative impact of the need for multiple departures from the SLEP. Particulars The development required three departure [sic] from the requirements of the SLEP. The CPSC [sic] did not turn its mind to whether those departures, even if justifiable individually, were justifiable as a whole.
The Brief at par 114 stated that it was considered that the proposal would have no detrimental impact on the public interest, subject to appropriate conditions being imposed.
The Applicant submitted that the SLEP contains a number of default standards including standards relating to FSR, competitive design processes and site-specific DCPs. Those default standards reflect an assessment as to what planning objectives and the public interest ordinarily require. In this case the proponents sought and the CSPC granted a departure from three of those default standards. Where a consent authority proposes to authorise multiple departures from the SLEP, the consent authority must consider whether the authorisation of multiple departures from the default requirements is appropriate. That is an aspect of the public interest. A failure to consider a particular aspect of the public interest in a particular case may vitiate a consent: Davis v Gosford City Council (2014) 87 NSWLR 699; [2014] NSWCA 343 at [84] (Preston CJ of LEC, Beazley P and Ward JA agreeing at [1] and [2] respectively) (Davis (CA)). In this case, the CSPC was obliged to consider whether the public interest warranted the waiver of multiple default requirements of the SLEP. Nothing in the materials before the CSPC suggests that the CSPC's attention was directed to this critical aspect of the public interest. To the contrary, the material addressing the public interest was perfunctory and directed to another topic, see Brief at par 114.
I agree with and adopt the Respondents' submission that no legal error is identified in this ground. Nothing in the SLEP or the EPA Act expressly or impliedly establishes a duty to take into account the cumulative impact of the need for multiple departures from the SLEP. If an EPI imposes discrete requirements that are expressly subject to particular exceptions, a development proposal that satisfies the qualifying conditions for eligibility under one or more of those exceptions cannot be said to "depart" from the instrument. The availability of a particular dispensing power depends on the criteria set out in the relevant clause rather than any aggregate assessment of whether other provisions in the SLEP may or may not apply.

[45]

Ground 8 - heritage floor space allocation (cl 6.11 of the SLEP)

Ground 8 of the amended summons alleges errors in relation to the application of cl 6.11 of the SLEP as follows: 23 The CPSC [sic] erred by failing lawfully to consider and/or apply clause 6.11 of the SLEP. Particulars The CPSC [sic] did not consider and was not satisfied that the pedestrian route was vital. The CPSC [sic] did not allocate additional floor space permitted under clause 4.6. The additional floor space which it was necessary to permit under clause 4.6 was 1,853.5 sqm, being the difference between the total floor space of the approved development and the permissible floor space. Even if a reduction of 250 sqm was lawfully applied, the heritage floor space required under clause 6.11 was 1,603.5 sqm. Condition 16(c) provided only for 1,424 sqm.
Clause 6.11(1)(e) requires an amount of heritage floor space to be allocated to a site that is equal to the additional floor space permitted under cl 4.6. According to cl 6.11(2)(b) the amount of heritage floor space that is required to be allocated may be reduced by up to 50 percent or 250 square metres "if the development includes any covered or partially covered pedestrian route through the site at street level and the consent authority is satisfied that the pedestrian route provides a vital and publicly accessible link between 2 streets". A through-site link is proposed as part of the design for the podium building. Condition 16 of the consent deals expressly with the allocation of heritage floorspace.
The Applicant submitted that cl 6.11(1)(e) of the SLEP applied to the development since the development used additional floor space permitted under cl 4.6 and accommodation floor space in areas 1, 2 or 3. The CSPC purported to reduce the necessary amount of heritage floor space by 250 square metres pursuant to cl 6.11(2). The issue was addressed at pars 88-92 of the Brief (par 90 in particular) and condition 16(c) of the consent. There were three problems with the application of cl 6.11(2). First, nothing in the Brief suggested that the pedestrian route was vital. It cannot be held that the CSPC formed that opinion. Secondly, cl 6.11(2) confers a discretion, it is not an entitlement. The Brief at par 90 invited the CSPC to treat cl 6.11(2) as an entitlement which applied whenever the condition enlivening the discretion was met. Thirdly, the CSPC misunderstood the requisite floor space.

[46]

Consideration

All the material before the CSPC must be considered. While it is correct that the Brief deals expressly with heritage floor space and the application of cl 6.11 at pars 88-92, the topics of pedestrian access and amenity is dealt with in several other locations in the Brief as the Respondents submitted. Most relevantly under "Through Site Link" at pars 69-74 the benefits of the proposed pedestrian link between George and King Streets are identified. In the "Pedestrian Amenity" section in par 77 the Brief states that the proposed pedestrian awning is consistent with the objective for footpath awnings under the SDCP and enhances the amenity of the public domain amongst other positive attributes in pars 75-81.
The site link plan identified in the SDCP showing a link from George Street to Pitt Street is not achievable due to a building now fronting Pitt Street. That is clear from considering the SDCP and can be assumed was known to the CSPC. There was more than enough material before the CSPC to give rise to the inference that it was satisfied the pedestrian through-link was a positive contribution as referred to in cl 6.11(2). As the Respondents submitted the word "vital" does not need to appear in the Brief in order to avoid legal error. The Brief identified that the pedestrian link would make a positive contribution to the streetscape and pedestrian amenity.
Further, I agree with the Council's submission concerning the likely meaning of the word "vital" in this planning context as set out in [178] above. A focus on functionality is a much better fit than essentiality as the Applicant submitted.
For the reasons given by the Respondents in [179] above the approach to cl 6.11(2) in the Brief was correct. The CSPC was not misled concerning any entitlement to the reduction of heritage floor space required.
As the Respondents submitted, if there was an error in calculation of square metres this was an error of fact not law in looking at the matter of FSR applying Walsh v Parramatta City Council at [63].
Ground 8 is not established.

[47]

Ground 9 - error in relation to car parking design

Ground 9 of the amended summons stated as follows: 24 The CPSC [sic] erred by failing to consider whether the parking design could comply with the Australian standards referred to in condition 4 and, in particular, the minimum requirements of AS/NZS 2890.6 Parking Facilities Part 6: Off-street parking for people with disabilities or otherwise erred in law in its consideration of parking design issues. Particulars The Council was informed that the basement parking was unlikely to meet current codes, particularly AS/NZS 2890.6 Parking Facilities Part 6: Off-street parking for people with disabilities: Email from Harry Quartermain to Peggy Wong dated 1 November 2018 at 11:34am. This was not drawn to the CPSC's [sic] attention.
The Applicant submitted that the proponents informed the Council of an existing basement at the site that would be unlikely to meet "AS/NZS 2890.6 Parking Facilities Part 6: Off-street parking for people with disabilities" due to its head height (see email from Mr Quartermain to Ms Wong). This led to the insertion of the phrase "[s]ubject to the constraints of the existing basement structure" at the beginning of condition 4 of the consent which concerns parking design. This was not drawn to the CSPC's attention and therefore it was not possible for the CSPC to have regard to the likely impacts of the development which included the impact on people with disabilities. If there was doubt as to whether car parking limitations were an impact of the development, there was an obligation on the CSPC to form a view either way: Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349 at [45] (Basten JA, Giles and Macfarlan JJA agreeing at [1] and [59] respectively).
The Second and Third Respondents submitted that the Applicant's ground discloses no legal error. The application of a particular Australian Standard (AS/NZS 2890.6) meant that the DA was affected by existing site constraints, namely a low ceiling in the basement carpark.
The final form of draft condition 4 (see recommended conditions of consent at [17] above) did disclose this issue to the CSPC. No error of law arises in these circumstances.
Ground 9 is not established.

[48]

In conclusion

As the Applicant has not been successful on any ground of review the summons will be dismissed.
The Applicant has been unsuccessful in these Class 4 proceedings and the usual costs order is that costs follow the event, so that the Applicant would be liable for the Respondents costs. An order to that effect will be made within two weeks of these orders unless a notice of motion is filed seeking alternative costs orders.

[49]

Orders

The Court orders 1. The Applicant's summons dated 21 December 2018 is dismissed. 2. The Applicant is to pay the Respondents' costs unless a notice of motion to vary this order is made within 14 days. 3. The exhibits are returned.

[50]

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: 16 August 2019

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