Gosford Waterfront Alliance Inc v TO Gosford Pty Ltd

Land and Environment Court (NSW)|2016-11-02|Before: Pain J

SOLICITORS: Taperell Rutledge Solicitors (Applicant) Hartley Solicitors (First Respondent) Central Coast Council (Second Respondent) File Number(s): 2016/245156

Judicial review of decision of JRPP to approve commercial development

The Applicant has filed a judicial review challenge to the decision of the Hunter and Central Coast Joint Regional Planning Panel (JRPP) to approve the First Respondent's mixed use commercial and retail development in the waterfront area of Gosford City Centre. A declaration is sought that the determination of the JRPP on 30 June 2016 to approve the "Mixed Use Commercial & Retail Premises" at Lot 1 DP 1210298 known as 99 Georgiana Terrace Gosford is invalid. The subject land is zoned B4 Mixed Use under the Gosford Local Environmental Plan 2014 (GLEP). Notification of the grant of deferred development consent was issued by the Second Respondent Central Coast Council (the Council) on 30 June 2016. The JRPP has not been joined as a party. The Council filed a submitting appearance.

Environmental Planning and Assessment Act 1979

Relevant sections of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provide: Part 2A Other planning bodies … Division 3 Joint regional planning panels 23G Joint regional planning panels (1) The Minister may, by order published on the NSW legislation website, constitute a joint regional planning panel for a particular part of the State specified in the order. (2) A regional panel has the following functions: (a) any of a council's functions as a consent authority that are conferred on it under an environmental planning instrument, … (2A) An environmental planning instrument may only confer a council's functions as consent authority on a regional panel if the development is of a class or description set out in Schedule 4A. The functions of a consent authority may only be conferred on a regional panel in accordance with subsection (2) (a) and this subsection. … (5A) Subject to the regulations, a regional panel is, in the exercise of functions conferred under subsection (2) (a), taken to be the council whose functions are conferred on a regional panel as referred to in subsection (2) (a). … Part 4 Development assessment … Division 2 The procedures for development that needs consent 81 Post-determination notification (1) The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, and ... (c) such other persons as are required by the regulations to be notified of the determination of the development application. (2) If the consent authority is not the council, the consent authority must notify the council of its determination. … Schedule 4A Development for which regional panels may be authorised to exercise consent authority functions of councils … 3 General development over $20 million Development that has a capital investment value of more than $20 million. …

Environmental Planning and Assessment Regulation 2000

Clauses 100 and 123D of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) provide: Part 6 Procedures relating to development applications … Division 10 Post-determination notifications 100 Notice of determination (1) For the purposes of section 81 (1) of the Act, a notice of the determination of a development application must contain the following information: (a) whether the application has been granted or refused, (b) if the application has been granted, the terms of any conditions (including conditions prescribed under section 80A (11) of the Act) on which it has been granted, (c) if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 80A (11) of the Act), the consent authority's reasons for the refusal or for the imposition of those conditions, (c1) whether the applicant has the right to request a review of the determination under section 82A of the Act, … (d) the date on which the determination was made, (e) the date from which any development consent that is granted … (4) In the case of a development consent granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, or a person specified by the consent authority, as to any matter specified in the condition: (a) the date from which the consent operates must not be endorsed on the notice of determination, and (b) if the applicant satisfies the consent authority, or person, as to the matter, the consent authority must give notice to the applicant of the date from which the consent operates. … Division 12A Additional provisions where regional panel is exercising consent authority functions … 123D Provisions of Act not to apply as if regional panels were councils (1) For the purposes of section 23G (5A) of the Act, a regional panel is not taken to be the council for the purposes of the following provisions of the Act: (a) section 78A (3)-(6), (b) section 81 (2), (c) sections 82A, 82C, 82D and 96AB, (d) section 89 (2). …

State Environmental Planning Policy (State and Regional Development) 2011

Clauses 20 and 21 of the State Environmental Planning Policy (State and Regional Development) 2011 (SEPP) provide: 20 Development to which Part applies This Part applies to development of a class or description included in Schedule 4A to the Act. [See Sch 4A extracted above in par 6]. 21 Council consent functions to be exercised by regional panels (1) A regional panel for a part of the State may exercise the following consent authority functions of the council or councils for that part of the State for development to which this Part applies: (a) the determination of development applications, and applications for the modification of development consents previously granted by the panel, in accordance with Part 4 of the Act, (b) without limiting paragraph (a), the functions of a consent authority under Divisions 2 and 2A of Part 4 of the Act and sections 89A, 93I, 94, 94A, 94B, 94C, 94CA, 94EF, 94F, 95 (2), 96 (2) and 96AA of the Act. … (3) The council remains the consent authority for development to which this Part applies, subject to the exercise by regional panels of functions conferred on them by this clause.

Gosford Local Environmental Plan 2014

"Gosford City Centre" is defined in the Dictionary of the GLEP as land identified in the Key Sites Map incorporated into the GLEP. Clauses 4.6, 8.5, 8.6 and 8.7 of the GLEP provide: Part 4 Principal development standards … 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. … Part 8 Additional local provisions - Gosford City Centre … 8.5 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural and urban design. (2) Development consent must not be granted to development involving the construction of a new building or external alterations to an existing building in Gosford City Centre unless the consent authority considers that the development exhibits design excellence. (3) In considering whether development 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) whether the proposed development detrimentally overshadows Kibble Park, William Street Plaza, Burns Park and the waterfront open space adjoining The Broadwater, (e) any relevant requirements of applicable development control plans, (f) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the 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) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, with particular emphasis on water saving and recycling, (ix) pedestrian, cycle, vehicular and service access, circulation and requirements [sic], (x) the impact on, and any proposed improvements to, the public domain. 8.6 Car parking (1) Development consent must not be granted for development on land in Zone B3 Commercial Core or Zone B4 Mixed Use that involves the erection of a new building or an alteration or addition to an existing building that increases the gross floor area of the building unless: (a) at least one car parking space is provided for every 75 square metres of the gross floor area of the building that is to be used for commercial activities, and (b) at least one car parking space is provided for every 40 square metres of the gross floor area of the building that is to be used for the purpose of retail premises. (2) Car parking required to be provided by this Plan must be provided on site unless the consent authority is satisfied that the provision of car parking is adequately provided elsewhere. (3) For the purposes of this clause, the following are to be included as part of a building's gross floor area: (a) any area of the building that is used for car parking and is at or above existing ground level. (b) any area of the building that is used for car parking below ground level, except where the car parking is provided as required by this clause. (4) Council-owned public car parking is not to be included as part of a building's gross floor area. (5) In this clause: commercial activities, in relation to the use of a building, means the use of the building for the purposes of office premises, business premises, hotel or motel accommodation (but not hotel or motel accommodation that is subdivided under a strata scheme), food and drink premises or other like uses or a combination of such uses. 8.7 Active street frontages … (2) Development consent must not be granted to the erection of a building on land in Zone B3 Commercial Core unless the consent authority is satisfied that the building will have an active street frontage after its erection or change of use. … (4) In this clause, a building has an active street frontage if: (a) all premises on the ground floor, first floor and second floor of the building will not be used for the purposes of residential accommodation, and (b) all premises on the ground floor of the building facing the street or a pedestrian link will provide public access to the premises.
It is agreed between the parties that the application of cl 8.6(1) requires 105 car parking spaces to be provided for the proposed development.
The Council is a respondent. The JRPP exercised the consent authority functions of the Council in relation to this development consent, as provided by s 23G of the EPA Act and cl 21(1) of the SEPP. The Council remained the consent authority for the development according to cl 21(3) of the SEPP. The Council issued the Notice of Deferred Commencement Consent, as required by s 81(1) of the EPA Act. Section 23G of the EPA Act and those provisions of the SEPP which provide for the exercise of council functions by regional panels are set out above. It is unnecessary to further explore whether it is necessary for the JRPP to be a party to these proceedings. The Applicant's challenge is unsuccessful for the reasons I enumerate below. Consequently I need not consider what relief should be granted in relation to which decision-making body engaged in the assessment and approval process. I have set out the relevant statutory provisions concerning the role of the JRPP and the Council by way of background only.

Chronology

A brief agreed chronology follows: 4 February 2016 First Respondent's development application (DA) received by Council. 12 May 2016 JRPP briefing. 9 June 2016 JRPP briefing and site inspection. 9 June 2016 Public meeting of JRPP, Council assessment report provided to JRPP. At the meeting JRPP deferred consideration of the DA to enable consideration of six specified matters to be addressed in a supplementary Council assessment report. 30 June 2016 JRPP briefing. 30 June 2016 Public meeting of JRPP, supplementary Council assessment report provided to JRPP, Determination and Statement of Reasons issued. 30 June 2016 Council issued Notice of Deferred Commencement Consent including conditions. 4 August 2016 Council sent letter to Barker Ryan Stewart Pty Ltd (First Respondent's town planning firm) advising that conditions of deferred commencement have been satisfied and the consent is operative. 15 August 2016 Summons filed.

Clause 4.6 requests

A request to rely on a cl 4.6 variation in relation to a development standard was made in the Statement of Environmental Effects (SEE) submitted as part of the DA in February 2016 (the original cl 4.6 variation application). This was not subsequently relied on by the First Respondent. The JRPP adjourned the consideration of the DA on 9 June 2016 in part to seek advice on whether a cl 4.6 request was needed. An amended request to rely on cl 4.6 also in relation to the provision of car parking (superseding the original cl 4.6 variation application) was made by the First Respondent on 14 June 2016 and tendered as Exhibit 1. The amended cl 4.6 variation application was made in response to the reasons given by the JRPP for adjourning its consideration of the DA. It proposed 12 additional spaces to be constructed on Baker Street in addition to the 92 spaces proposed in the basement car parks. A total of 104 car spaces was proposed which was one less than the minimum GLEP requirement of 105 car spaces. No cl 4.6 request was considered by the JRPP when development consent was granted.

Documentary evidence

The Applicant tendered a bundle of documents as Exhibit A containing the material before the JRPP and other relevant documents and instruments.

Statement of Environmental Effects

The First Respondent's DA was supported by a SEE dated February 2016. The SEE contained consideration of the matters identified in cl 8.5 of the GLEP relating to design excellence. Each of the considerations in cl 8.5(3) was addressed in a detailed two page table. The SEE also included the original cl 4.6 variation application referred to above in par 13.

Council assessment report 27 May 2016

The Council assessment report dated 27 May 2016 was before the JRPP. The report listed and considered relevant s 79C matters. Under the heading "Design Excellence", the report stated that the proposal was consistent with the requirements for design excellence in cl 8.5 of the GLEP. In particular, it stated, "the proposal offers a good standard of architectural design, which is appropriate for the area, and employs design features in the front elevation that enhance the appearance of the development". Regarding car parking, the report stated that the proposal provides 92 car spaces. Clause 8.6 of the GLEP requires 105 car spaces. The report discussed the First Respondent's original cl 4.6 variation and concluded that it was reasonably founded and recommended it for support.

Supplementary Council assessment report 22 June 2016

On 9 June 2016 the JRPP deferred determination of the DA to enable consideration of a supplementary Council assessment report to address six specified matters including whether a cl 4.6 variation was needed. The supplementary Council assessment report dated 22 June 2016 considered the amended cl 4.6 variation application in relation to car parking which was submitted by the First Respondent on 14 June 2016. The supplementary Council assessment report stated that as there would be a shortfall of 13 car spaces a cl 4.6 variation was required. The First Respondent's amended cl 4.6 variation was set out which contended that compliance with the car parking standard was unreasonable or unnecessary for a number of reasons. The supplementary Council assessment report stated that by the First Respondent constructing car spaces in Baker Street as well as on site the proposal provided "a better outcome by allowing flexibility in parking provision for both the proposal and the waterfront."

JRPP Determination and Statement of Reasons 30 June 2016

In the Determination and Statement of Reasons the JRPP determined to grant deferred commencement consent to the First Respondent's DA. The JRPP gave its reasons for decision as follows: Reasons for the panel decision: The Panel granted Deferred Commencement Consent (Garry Fielding, Kara Krason & Bob Ward in favour; Ken Greenwald against), subject to the Deferred Commencement Consent conditions listed below and the recommended conditions in the Assessment Report, as amended. The decision was based on the statutory planning framework applying to the site, particularly the permissibility of the proposal within the B4 Mixed Use zone of Gosford LEP 2014. Although the Panel was sympathetic to public concerns expressed at the meeting that the proposal was inconsistent with the 2010 Gosford City Centre Masterplan, the intention of the Masterplan to designate the site for a future arts & entertainment precinct has not been carried through into the statutory planning framework. In respect of car parking, the Panel was satisfied that the required minimum provision of 105 parking spaces under clause 8.6 of the LEP was able to be met by a combination of onsite provision and the provision of additional parking in Baker Street. Concerning the proposed electricity kiosk, the Panel considered on environmental planning grounds it should be located elsewhere on the site in order to preserve tree T068. onsite (2) that provision for the, having regard to clause 8.6 of LEP 2014, [sic] Ken Greenwald voted against the granting of consent. He considered that the car parking should be wholly provided on the site in accordance with clause 8.6 Gosford LEP 2014. Accordingly, he did not support deferred commencement conditions permitting the car parking in Baker Street as contributing to provision of the required car parking spaces. I note that the JRPP did not consider the amended cl 4.6 variation application.
The JRPP listed all matters that it considered as follows: Relevant mandatory considerations: • Environmental Planning instruments: ○ State Environmental Planning Policy No 55 - Remediation of Land ○ State Environmental Planning Policy (Infrastructure) 2007 ○ Gosford Local Environmental Plan 2014 • Draft environmental planning instruments: Nil 6 • Development control plans: ○ Gosford Development Control Plan 2013 • Planning agreements: Nil • The likely impacts of the development, including environmental impacts on the natural and built environment and social and economic impacts in the locality. • The suitability of the site for the development. • Any submissions made in accordance with the Environmental Planning and Assessment Act 1979 and EPA Regulation. • The public interest, including the principles of ecologically sustainable development. Material considered by the panel: • Council Assessment Report dated 27 May 2016 • Written submissions during public exhibition: 23 • Supplementary Report dated 22 June 2016 • Verbal submissions at the public meeting 9 June 2016: ○ In Support: Alison Vidler on behalf of Gosford/Erina & Coastal Chamber of Commerce 7 ○ Against: David Abrahams, Jack Lloyd, Edward Power, Joy Cooper, Kevin Armstrong on behalf of Crown Land Our Land Gosford, Ylenna Zajec, Fiona Victoria Hopkins, Angelique Perak on behalf of Gosford Waterfront Alliance Nc., Matthew Fraser ○ On behalf of the applicant: Matthew Blair - Architect, Gavin Edgar Developer, Ian Stewart - Town Planner • Late submission received 29 June 2016 • Verbal submissions at the public meeting 30 June 2016: ○ In Support: Susan Drew, Peter Turnbull, ○ Against: Kevin Armstrong on behalf of Crown land Our Land Gosford, Joy Cooper, Michael Lynch, Jack Lloyd, Matthew Fraser, Trevor Chisholm, Marcelle Hoff, Ylenna Zajec, Emma Brooks Maher on behalf of Crown land Our Land Inc, Angelique Perak on behalf of Gosford Waterfront Alliance Inc, Sue McCarthy, Fiona Victoria Hopkins on behalf of Multi Arts Confederation, ○ On behalf of the applicant: Ian Stewart, David Carey.

The JRPP also stated that it considered the material presented at meetings and the matters observed at the site inspection on 9 June 2016.

Notice of Deferred Commencement Consent 30 June 2016

The Council issued the Notice of Deferred Commencement Consent on 30 June 2016, the same day that the JRPP issued the Determination and Statement of Reasons. The deferred commencement consent specified three matters that were required to be satisfied by the First Respondent before the consent would be operational. Relevant to these proceedings is the first of those matters relating to car parking: 1 Detailed layout and design plans for road and public domain works associated with the development are to be submitted for the approval of Council showing a minimum net additional 13 on-street car spaces adjoining the proposed development in Baker Street and Georgiana Terrace. The plans are to demonstrate that the proposed spaces satisfy the Disability Discrimination Act and relevant Australian Standards. Such details shall address the requirements of Condition 2.6 of this consent.

Other evidence

A letter sent on 14 July 2016 from the First Respondent's planner to the Council attaching plans addressing the deferred commencement consent conditions was tendered as Exhibit 2. One of the attachments was a revised civil drawing showing a total of 16 car spaces to be constructed along Baker Street. The deferred commencement conditions have now been complied with.

Grounds 1 and 2

Grounds 1 and 2 were argued together at the hearing. Ground 1 alleges that the assessment of car parking requirements under cll 8.6 and 4.6 of the GLEP was a jurisdictional fact. Ground 2 alleges that the JRPP misconstrued cl 8.6 of the GLEP. The Amended Summons provided: Ground 1 Jurisdictional fact: cl 8.6 and cl 4.6 GLEP (1) The JRPP had no power to grant approval because it did not undertake an assessment of the non-compliance with the development standard for the provision of car parking in cl 8.6 of Gosford Local Environmental Plan 2014 (GLEP) in the manner required by cl 4.6 GLEP. Particulars a. The Statement of Environmental Effects (SEE) provided by the applicant for consent included a written request addressing the variation of the development standard set by cl 8.6 GLEP for car parking. b. The written request was provided because the development proposed to provide 92 car parking spaces, a shortfall of 13 car parking spaces of the 105 spaces required by the development standard in cl 8.6 GLEP. c. The JRPP failed to undertake an assessment of the non-compliance with the development standard for car parking in cl 8.6 GLEP in the manner required by cl 4.6 GLEP. i. The JRPP failed to consider the written request from the applicant in respect of departure from the development standard in the manner required by cl 4.6(3). ii. The JRPP failed to form the satisfaction required by cl 4.6(4). iii. The JRPP failed to consider whether the development would be in the public interest, whether the development would be consistent with the objectives of the particular standard and failed to consider whether the proposed development would be consistent with the objectives for development in the zone in which the development was proposed to be carried out in the manner required by cl 4.6(4)(a)(ii). iv. The JRPP failed to consider the matters required by cl 4.6(5). v. The JRPP failed to keep a record of its assessment of the factors required to be addressed as required by cl 4.6(7). Ground 2 Misconstruction of cl 8.6 (2) The JRPP misconstrued cl 8.6 of GLEP and consequently impermissibly placed reliance on cl 8.6(2) of GLEP. Particulars a. The JRPP misconstrued cl 8.6 by treating car parking spaces generally available in the public street nearby the Site as providing 13 of the required 105 parking spaces required to be provided by the development standard in cl 8.6(1) GLEP. b. The car parking spaces in Baker Street are provided by the public. c. Car spaces shared with the public in a public street is not provision of car parking within the meaning of cl 8.6(1) and/or cl 8.6(2). d. Consequently there was no proper basis for the JRPP to form the satisfaction required by the terms of cl 8.6(2).

Applicant's submissions

Dealing first with the construction of cl 8.6 (ground 2), the Applicant submitted that cl 8.6 must be construed as requiring the First Respondent to provide physical car parks exclusively for the development. The JRPP erred in the application of cl 8.6 because it gave approval on the basis that parking for 13 spaces would be provided on Baker Street in the extension to be built by the First Respondent as part of its development. The Applicant submitted that the words "provision" and "provided" in cl 8.6 have two possible meanings. These were the supply of car parking spaces for the purpose of the development or the provision of car parking generally available elsewhere. The JRPP incorrectly conflated numerical and locational requirements in cl 8.6(1) and (2).
In the alternative, if the Court construes the words "provision of car parking" in cl 8.6(2) as giving authority to relax the locational requirement in cl 8.6(2) for some or all car parking on the basis that the general availability of parking off-site, the numerical requirement in cl 8.6(1) was still not satisfied. This is because offsite car parking must be for the exclusive use of the development. Consequently a request under cl 4.6 still had to be considered by the JRPP and was not (ground 1).

Grounds 1 and 2 fail

Ground 2 requires the statutory construction of the LEP, cl 8.6 in particular, and should be considered first as the Applicant submitted. As French CJ stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [5], the established common law approach to statutory construction begins with the ordinary grammatical meaning of the text having regard to context and purpose. That is not to say that the general purpose of an act displaces the clear meaning of the words being construed: Alcan at [53] per Hayne, Heydon, Crennan and Kiefel JJ. The majority in Alcan stated at [47]: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
A further principle of construction requires a court to give effect to every word in a provision wherever possible, as stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71]. Application of that statutory construction principle in relation to cl 8.6(2) is straightforward as the words are clear. The Applicant sought to reduce the importance of the words in the second half of cl 8.6(2): "…unless the consent authority is satisfied that the provision of car parking is adequately provided elsewhere". These words should be construed to have as much weight as the first half of the subclause "[c]ar parking required to be provided by this plan must be provided on site…" The Applicant's focus on the so called locational requirement in the first half of cl 8.6(2) does not dilute the significance of the words in the second half of subcl (2), which are clear on their face. There is no explicit or implicit statutory indicator for construing "…car parking can be adequately provided elsewhere" other than by its broad terms.
For the reasons otherwise given by the First Respondent the Applicant misconstrues cl 8.6.
There is no dispute that cl 8.6(1) requires that 105 car parking spaces must be available for this development. Clause 8.6(2) does not dictate by whom the car parking must be provided simply stating that it is to be provided. There is no express requirement that parking "elsewhere" must be provided by the proponents of the development. The attempt by the Applicant to suggest some textual indication of a relationship between provision of car parking and the proposed development is not borne out by the clear words of the clause and the dictionary definitions of "provide" to which the Applicant refers.
There is no requirement in cl 8.6 or otherwise in the LEP that the car parking spaces must be for the exclusive use of the development. The required number of spaces as identified under subcl (1) must be available. The Applicant's submissions assert a requirement of exclusivity without providing any textual basis for it. It is apparent that cl 8.6 contemplates multi-use parking as is evidenced by cl 8.6(4), which removes Council owned car parking from the calculation of GFA. It does not exclude it as a means of providing car parking required by cl 8.6(1).
Even if the Applicant were correct that the car parking must be provided as part of the development, as a matter of fact it is being provided. The car parking in Baker Street (being the parking accepted by the JRPP) did not exist when development consent was sought as Baker Street only existed on paper. It is being constructed by the First Respondent pursuant to the conditions of consent.
None of the particulars in ground 2 supporting the misconstruction of cl 8.6 of GLEP are made out. The JRPP did not misconstrue cl 8.6 by treating public car parking space on Baker Street as satisfying in part cl 8.6(1).
That there is no exclusion of cl 8.6 from the operation of cl 4.6 as provided by cl 4.6(2) is irrelevant.
Ground 1 alleges a failure by the JRPP to assess a non-compliance with cl 8.6, a development standard, as a variation to that standard under cl 4.6 of the GLEP. I have found there was no failure by the JRPP to correctly apply cl 8.6 in ground 2. Consequently there was no need for an application to be made by the First Respondent under cl 4.6 to vary cl 8.6. The Applicant cannot succeed on grounds 1 and 2.
Ground 3 was not pressed at the hearing.

Grounds 4 and 5

Grounds 4 and 5 were argued together at the hearing and allege the JRPP failed to consider design excellence or else its consideration of design excellence was manifestly unreasonable. The Amended Summons provides: Ground 4 Failure to consider design excellence (4) The JRPP failed to consider design excellence in the manner required by GLEP cl 8.5 thus did not have power to grant consent. Particulars a. The subject site fell within an area defined by GLEP as the Gosford City Centre. b. Part 8 of the GLEP applied exclusively to the Gosford City Centre. c. Clause 8.1 had nine the [sic] stated objectives for the particular controls in Part 8 in respect of Floor Space Ratio (cl 8.3), minimum building street frontage (cl 8.4), design excellence (cl 8.5), car parking (cl 8.6), active street frontages (cl 8.7), and further provisions. d. In respect of design excellence cl 8.5(1) also had an express objective to deliver the highest standard of architectural and urban design in the Gosford City Centre. e. The JRPP did not conduct its merit assessment for design excellence in the manner required by cl 8.5(2) and 8.5(3) and consequently: i. did not form the requisite state of mind mandated by cl 8.5(2) that "the consent authority considers that the development exhibits design excellence" thus did not have power to grant consent; and ii. failed to have regard to all the matters specified in cl 8.5(3) all of which were mandatory for consideration. Ground 5 Manifest unreasonableness: design excellence & car parking (5) The exercise of the planning discretion by the JRPP in considering Part 8 GLEP was so devoid of plausible justification and so irrational that no reasonable person could have granted planning consent, such that the exercise of the planning discretion miscarried and/or amounted to an abuse of power. Particulars a. There was ample available unutilised floor space (cl 8.3) and height (cl 4.3) such that by the basic design brief and in execution of the design brief car parking could have been provided on site as mandated by cl 8.6(2). b. It was irrational for the JRPP form a state of mind that "considers that the development exhibits design excellence" in the circumstances in particular a. hereof.

Applicant's submissions

The Applicant contended that the JRPP failed to consider design excellence in the manner required by cl 8.5 and consequently failed to form the requisite state of mind mandated by cl 8.5(2) (ground 4). The Applicant submitted that a development that does not satisfy the development standards in a local environmental plan cannot deliver design excellence as specified in cl 8.5. In particular, the Applicant claimed that because the car parking requirements in cl 8.6 were not met, the JRPP could not be satisfied that the development exhibited design excellence in cl 8.5. Alternatively if such a state of mind was formed, it was irrational and so devoid of plausible justification that no reasonable consent authority could have come to that conclusion (ground 5).

Grounds 4 and 5 fail

These grounds must fail as grounds 4 and 5 are predicated on a finding in grounds 1 and 2 that cl 8.6 must be construed a certain way according to the Applicant. I have rejected that construction. There was no error of law in the JRPP's approach to the car parking requirements in cl 8.6.
Further the Applicant's approach to the construction of cl 8.5 was incorrect. Particulars (a)-(d) in ground 4 correctly identify the application of Pt 8 of the GLEP to the Gosford City Centre. The substance of the challenge is in particular (e). While particular (e)(ii) referred to a failure to have regard to matters in cl 8.5(3), which matters number 15, the Applicant's submissions at the hearing focussed solely on cl 8.5(3)(f)(ix) "pedestrian, cycle, vehicular and service access, circulation and requirements [sic]" as requiring compliance with cl 8.6 Car parking. There is no explicit reference to cl 8.6 in cl 8.5 so any obligation to assess cl 8.5 matters in light of cl 8.6 must be inferred. The clear words of cl 8.5 do not suggest, nor does an inference arise, that cl 8.5 is to be read together with cl 8.6 in the manner contended for by the Applicant. Clause 8.5(3) contains a list of mandatory matters that must be considered by the consent authority in determining whether the development exhibits design excellence. Clause 8.5 operates separately to cl 8.6. Each clause has separate work to do.
Assessment of the design excellence of the proposed development on the basis of the considerations in cl 8.5(3) was included in the material before the JRPP. The SEE submitted by the First Respondent contained a detailed assessment over two pages of each of the considerations in cl 8.5(3). The Council assessment report dated 27 May 2016 under the heading "Principal Development Standards" contained a discussion of design excellence requirements in the context of cl 8.5. It concluded that the proposal was considered to be consistent with the requirements in cl 8.5. The Council assessment report dated 27 May 2016 stated that the proposal offers a good standard of architectural design which is appropriate for the area and employs design features in the front elevation that enhance the appearance of the development. It stated that the proposed development would not detrimentally impact on view corridors or overshadow waterfront open space, and that it had been assessed as compliant with the development control plan.
The Applicant's submission that the proposal could not satisfy cl 8.5 unless it exhibited "the highest standard of architectural and urban design" is premised on an incorrect interpretation of cl 8.5. Clause 8.5(1) provides that "[t]he objective of this clause is to deliver the highest standard of architectural and urban design." This subclause has no operative effect. The operative requirement is contained in cl 8.5(2) which states that development consent is not to be granted "unless the consent authority considers that the development exhibits design excellence." This requirement is fulfilled by having regard to the mandatory considerations in cl 8.5(3). These matters were referred to in the material before the JRPP. The JRPP's determination refers to material considered by it and includes both council assessment reports. The Applicant's case does not otherwise challenge any other aspect of the consideration of cl 8.5 by the JRPP.
The Applicant's attempt to elevate the objects of cl 8.5 to an operative provision and rely on its own subjective assessment of the architectural and design attributes of the proposed development is not an available approach in judicial review proceedings. To suggest that the building does not exhibit design excellence is an impermissible merits submission.
As I have concluded that the requirements of cl 8.6 Car parking were satisfied, ground 5 arguing that it was manifestly unreasonable to find that the building exhibits design excellence in light of the failure to comply with cl 8.6 cannot succeed.
Grounds 4 and 5 are not established.

Ground 6

Ground 6 of the Amended Summons provides: Ground 6 Condition 6.2 invalid (6) Condition 6.2 in the terms as amended by the JRPP is uncertain, unenforceable and not severable from the Consent such that the Consent must be declared invalid. Particulars a. Condition 6.2 as proposed by the Council officers Assessment Report stated: The Georgiana Terrace and Baker Street frontages shall retain an open and active street frontage by windows not be covered or blocked by furniture. b. The JRPP required Condition 6.2 to be amended to read: The Georgiana Terrace and Baker Street frontages shall retain an open and active street frontage. c. No reasons were provided by the JRPP to explain why it made the change to the condition as proposed by the Assessment Report. d. Just what was required by Condition 6.2 is uncertain and consequently unenforceable. e. The possible meanings of Condition 6.2 include at least: i No design changes were required, and/or that no change in use was required in order to comply with Condition 6.2. ii Something more was required by way of design and/or use so as to "retain an open and active street frontage" in order to comply with Condition 6.2. f Just what that something more might be is left open and uncertain by the terms of Condition 6.2 as imposed. g The following facts and circumstances infer that something more by way of design and/or use was being required by the JRPP when it imposed Condition 6.2: i The satisfaction required to be formed by cl 8.7(2) in respect of "Active street frontages" for the erection of a building on land in Zone B3 did not apply to the subject land which fell within Zone B4. ii. Nonetheless the JRPP imposed Condition 6.2 requiring that The Georgiana Terrace and Baker Street frontages shall retain an open and active street frontage. iii GLEP cl 8.7(4) provided: (4) In this clause, a building has an active street frontage if: (a) all premises on the ground floor, first floor and second floor of the building will not be used for the purposes of residential accommodation, and (b) all premises on the ground floor of the building facing the street or a pedestrian link will provide public access to the premises h If it was something more by way of design and/or use that was being required by the JRPP, then just what that something more was to be has been left uncertain with no mechanism for resolving such uncertainty. i Condition 6.2 is not severable. • The consideration of active street frontage was of such significance to the JRPP that it amended Condition 6.2 from that which was recommended. • It must be inferred that without either the condition as recommended or as amended the JRPP would not have been prepared to grant consent. • Consequently Condition 6.2 is not severable from the consent.
The Applicant's argument on this ground is fully articulated in the particulars in the Amended Summons, set out in the preceding paragraph. Condition 6.2 as imposed by the JRPP is set out in particular (b). That proposed in the Council assessment report dated 27 May 2016 is in particular (a). The final condition 6.2 imposed by the JRPP omits the words "by windows not be [sic] covered or blocked by furniture" recommended in the Council assessment report dated 27 May 2016 (particular (a)-(b)). The JRPP did not provide a reason for that specific change (particular (c)). The Applicant submits that the condition is uncertain and cannot be enforced in particulars (d), (f) and (h). The Applicant infers what the JRPP might have had in mind in particular (g). Alternative meanings for the condition are proposed in particular (e). The Applicant argues that because condition 6.2 is uncertain the whole consent must fail because it is not severable as particularised in (i).
As I stated in Rich v Lennox Palms Estate [2009] NSWLEC 167 at [24], a development consent must be construed in order to give it practical effect and to avoid uncertainty citing Driscoll v J Scott Pty Ltd (1976) 36 LGRA 159 per Murphy J at 163-164 and Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 per Hodgson JA at [40]. A development consent must be considered as a standalone document and only other documents incorporated explicitly or implicitly can aid in its construction: Tipfast Pty Ltd v South Sydney City Council (2002) 120 LGERA 292; [2002] NSWLEC 85 at [14] citing Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434. The Applicant's submissions in particulars (e), (g) and (h) which speculate about the meaning of the condition and why the JRPP made the change that it did to the final condition from that proposed in the Council assessment report in the context of the GLEP are immaterial to the construction of the condition given these principles of construction.
The First Respondent correctly argues that the condition is not uncertain. It requires the retention of the open and active street frontages that have been approved by the JRPP as part of the development consent. Condition 6.2 is under the category of conditions "Ongoing Operation". It is clear that condition 6.2 is not directed to the design stage of the development but rather to the ongoing operation of the building. Condition 6.2 requires that the approved street frontages are not changed at a later stage. That effect and meaning is not uncertain and not unenforceable, contrary to particular (d).
Although not strictly arising, the Applicant argued that the condition is not severable in particular (i). As the First Respondent submitted, in order to succeed on that argument the Applicant must show that the consent will be materially altered if the condition is removed. It clearly will not be so altered and could be severed if need be. The Applicant fails on ground 6.
Ground 7 was not pressed by the Applicant.

Ground 8

Ground 8 alleges that the JRPP failed to provide adequate reasons which led to a denial of procedural fairness and is set out in the Amended Summons as follows: Ground 8 Inadequate reasons (8) The Determination and Statement of Reasons dated 30 June 2016 published by the JRPP (the Reasons) failed to provide sufficient or adequate reasons and consequently: (i) denied procedural fairness to all those affected by the decision; and (ii) warrants the inference that the JRPP has failed in some respect in exercising its powers according to law. Particulars a. The perfunctory reasons proffered by the JRPP has denied both the public and the applicant for consent as well as the second respondent Council the ability to understand the basis upon which the decision was made both generally and in respect of aspects of the assessment process in the nature of jurisdictional facts, satisfaction and states of mind. b. The reasons provided fell well short of meeting the obligation to provide transparency in decision-making by the JRPP. c. To the extent that there may be jurisprudence to the effect that in the circumstances which pertained to this development application that the JRPP was not obliged to give any more reasons than those proffered or any reasons at all, then that jurisprudence ought be distinguished, ought be regarded as wrong or no longer apposite having regard to contemporary standards for public accountability. 1) General Inadequacy d. The statutory regime which applied to the proposed development was determined by the JRPP because of the size and significance of the development measured by reference to a "Capital Investment Value" of greater than $20 million. e. In addition to substantial written materials the JRPP held two public meetings on 9 June 2016 and 30 June 2016, at both of which the JRPP accepted verbal submissions from the public and from the applicant. f. The decision of the JRPP by the statutory regime is deemed to be the decision of the second respondent Council. g. Neither the Council nor members of the public have any right of appeal on the merits of the determination of the JRPP. h. In the circumstances the JRPP had a legal obligation to provide a more detailed explanation of its reasons then [sic] those provided under the heading "Reasons for the panel decision" found in the Determination and Statement of Reasons for 30 June 2016. 2) Specific Inadequacy: i. These particulars also rely on the particulars of general inadequacy of reasons. 2(a): Design Excellence j. The statutory regime gave the JRPP the power to grant consent only if the JRPP formed a state of mind, in the manner prescribed by cl 8.5, that it "considers that the development exhibits design excellence": cl 8.5(2). k. The existence of that state of mind was a jurisdictional fact, absent which there was no power to grant consent. I. In such a circumstance, there was a legal obligation cast upon the JRPP to provide an explanation by way of reasons for the formation of a state of mind or satisfaction of the kind required by cl 8.5(2). 2(b): Condition 6.2 m. These particulars also rely on the circumstances set out in the particulars a. to h. inclusive for Ground 6. n. In such circumstances there is a legal obligation cast upon the JRPP to provide an explanation by way of reasons for the change in wording for Condition 6.2
No statutory obligation under the EPA Act is imposed on the JRPP to provide reasons at all or in a particular manner for its decision to approve the development. The JRPP did provide succinct reasons as set out above in par 18. The desirability of reasons being provided by an administrative decision-maker is well accepted, Mark Aronson and Mathew Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters) at 595 n 657 citing Gibbs CJ in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7 at 668.
The particulars for this ground focus on the adequacy of the reasons provided by the JRPP and allege a denial of procedural fairness to those affected by the decision. The person most directly affected by the decision of the JRPP was the First Respondent as the applicant for development. I infer that the Applicant intends by the words "those affected" to refer to the members of the Applicant. Given that this is a planning issue the Applicant may also by inference be arguing that the community at large is affected by the decision given that the development will occur in a public space in an important civic area on the waterfront, which in a broad sense is correct.
In the development context the obligation to give reasons under the EPA Act is found in cl 100(1)(c) of the EPA Regulation which requires that a notice of determination to an applicant for development consent must provide reasons for a refusal of consent or for the imposition of conditions.
The duty to give reasons in cases such as Osmond was considered in relation to the person directly affected by the administrative decision. The Applicant's case as articulated in the summons and in oral submissions relied heavily on the judgment of Kirby P (with whom Priestley JA agreed, Glass JA dissenting) in Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 in the New South Wales Court of Appeal. Osmond concerned a challenge to a decision of the Public Service Board of New South Wales not to promote the plaintiff without providing reasons. The plaintiff alleged the failure to provide reasons was a breach of natural justice principles. Justice Kirby concluded that there was a common law duty to provide reasons for administrative decisions in order to accord natural justice and procedural fairness to the plaintiff at 467-470. The High Court in Osmond unanimously overturned the Court of Appeal and found that there is no common law duty to provide reasons for administrative decisions. At 662 Gibbs CJ stated that the decision of the Court of Appeal was "opposed to overwhelming authority" and that: [t]here is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons.
The Applicant made a broad submission that the reasoning of Kirby P in Osmond (CA) has now come of age and therefore the decision of the High Court in Osmond should not be followed. This course is not open to me as a judge of first instance in the absence of other factors identified in case law since Osmond or any specific statutory provisions requiring reasons in this context. Aronson and Groves at 601 consider that Osmond's longevity may be due to the marked expansion of statute law requiring the giving of reasons since that decision, resulting in fewer cases to test it.
Cases since Osmond have found an implied right to reasons exists in order for a statutory appeal right to be exercised. One such case was relied on by the Applicant. In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 the Court of Appeal held that a particular statutory scheme concerning appeals to a tribunal in relation to a doctor issuing a medical certificate gave rise to an implied obligation on the tribunal to give reasons. No express obligation was included in the relevant statute. As the original decision maker, a doctor providing a medical report, had a duty to give proper reasons, the appeal panel also had an implied duty to give proper reasons (at 377). This is because, as Handley JA stated at 376: [s]ince an appeal is a means of redressing or correcting an error of the primary decision maker, a successful appeal should produce the correct decision, that is the decision the original decision maker should have made. It is therefore an inherent feature of the appellate process that the appellate decision maker exercises, within the limits of the right of appeal, the jurisdiction or power of the original decision maker.
The second reason given by Handley JA was that reasons would have enabled the Court or the Workers' Compensation Commission to exercise a power under the relevant Act to order a further medical assessment (at 377). These reasons concerning the facilitation of the exercise of a statutory power are important in this context. The circumstances in Vegan differ from the statutory scheme in which the JRPP operates. Under s 97 of the EPA Act an applicant for development consent who is dissatisfied with the determination of a consent authority has a right of appeal for a merits review of that decision in this Court. An applicant for development may be dissatisfied with a decision where his or her application is refused or particular conditions are imposed. In both of those situations cl 100(1)(c) of the EPA Regulation requires a consent authority to provide reasons. The statutory requirement to provide reasons in cl 100(1)(c) provides information relevant to the exercise of that appeal. The Applicant who does not have a statutory appeal right has not identified any shortcomings in the notice of determination as to whether cl 100(1)(c) was complied with. I note for completeness that the Council issued the relevant notice.
Lengthy submissions were made about why Osmond (HCA) should be distinguished because of the "bifurcation" of the roles of the Council and the JRPP under cl 21(3) of the SEPP and s 23G of the EPA Act, but this factual circumstance does not provide any basis for distinguishing Osmond (HCA). As the First Respondent submitted, no unique circumstance exists in this case that would give rise to an implied duty on the JRPP to give reasons beyond those actually provided.
The Uniform Civil Procedure Rules 2005 (NSW) in r 59.9 provide for reasons for an administrative decision to be required to be provided after proceedings have been commenced. No such application was made in this case.
The JRPP provided reasons as set out above in par 18. No relevant authority was identified to support the submission that the reasons as provided by the JRPP did not achieve a requisite standard. Cases referred to by the Applicant such as Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 concern the giving of reasons in the context of the exercise of judicial power and have no application to the JRPP acting as an administrative body under the EPA Act. Submissions concerning minimum acceptable standards for public accountability in order to meet so called foundation principles of public accountability, discipline and transparency lacked specificity and support in case law.
Even if I were to conclude generally that there was a legal obligation on the JRPP to provide more reasons in the circumstances of this case, the Applicant's arguments focussed on two alleged failures of the JRPP to give reasons. Firstly, as the JRPP did not adopt the wording recommended by the Council assessment report dated 27 May 2016 for imposing condition 6.2 and, secondly, because of lack of consideration of cl 8.5 (Design excellence) better reasons were required by law. I found in relation to grounds 4 and 5 that no failure of the JRPP in relation to the consideration of design excellence in the context of cl 8.6 (Car parking) was demonstrated. That finding required rejection of the Applicant's construction of cl 8.5. I found in relation to ground 6 that the Applicant had not demonstrated that condition 6.2 was invalid as the condition imposed was clear on its face. Given these findings on earlier grounds there is no basis for considering there was a failure to provide reasons in these specific respects by the JRPP.
Ground 8 fails. The Applicant's summons must be dismissed as it has not succeeded on any of the grounds of appeal.
I note for completeness that the Applicant provided to the Court a number of questions or issues it considered had to be addressed. The fundamental problems identified with the Applicant's case in my judgment mean that there was no legal basis established to address these.
The usual costs rule in Class 4 proceedings is that the unsuccessful party must pay the costs of the successful party. If applied an order would be made that the Applicant pay the Council's costs. As the parties have not addressed me on costs comprehensively I will postpone the making of such an order to enable an application to be made for an alternative order if done within 28 days of this judgment.

Orders

The Court orders: 1. The Applicant's Amended Summons dated 1 November 2016 is dismissed. 2. The Applicant is to pay the First Respondent's costs unless a notice of motion is filed within 28 days by any party seeking alternative costs orders. 3. The exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2016

Environmental Planning and Assessment Regulation 2000(NSW)

(2011) 184 LGERA 123

(2002) 120 LGERA 292

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