" In order to ensure that Stage 1 of the total development addresses the provisions of the draft City Centre Local Environmental Plan and Development Control Plan, currently on exhibition … ".
38 No copy of the "operative" consent is before the Court, as such, but the "final amended plans" provided by Belmorgan to Council on 9 August 2007 are (Exhibit 3, tab 36), and there is material (e.g. Exhibit 3, tab 34) indicating the differences between them and the original project outlined in the DA (the plans at Exhibit 3, tab 37).
39 Below street level the basement areas, and above street level the facades, the number of levels, and the internal layout of the retail, cinema and public spaces have been altered to accommodate the requirements of the deferred commencement conditions. The number of above-ground levels has reduced from eight to six. A central issue faced by the Court is whether these alterations convert the project approved by the Council into a "significantly different development".
C. The Applicant's attack on Council's consent
40 The Applicant's attack on the 21 August 2006 consent granted by Council to Belmorgan is outlined formally in its Points of Claim ("POC") filed 22 December 2006 and elucidated in its written and oral submissions. Particular reliance is placed on the principles laid down by two leading authorities, namely Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 ("Mison") and Weal v Bathurst City Council and Another (2000) 111 LGERA 181 ("Weal"). The onus lies on the challenger to show that the determination/consent is unlawful.
41 The first claim the Applicant makes (in POC 14&17) is that Council in granting the deferred commencement consent "impermissibly deferred for later consideration", and/or failed to give "any or proper, genuine and/or realistic consideration" to, matters which Council was required to consider under s79C(1) of the EP&A Act, especially the provisions of the draft LEP and draft DCP placed on exhibition on 11 August 2006 (see par [24] above). This ground of challenge will be considered in section D of this judgment.
42 The second claim made (in POC 14(c)-16) is that the deferred commencement conditions "produce the result that Council granted consent without knowing the final design of the development" (as required by s.79C(1)(b)&(c)), and that the operation of the conditions "significantly altered" the development in the DA to such an extent that Council did not approve the DA made by Belmorgan. There are subsidiary claims that the deferred commencement conditions fail for lack of finality and certainty, yet they required the development to be redesigned to an extent which was unknown to Council at the time it purported to grant consent. This ground of challenge will be considered in section E of this judgment.
43 A third claim (in POC 17(c)) is that the deferred commencement consent was purportedly granted without Council having given any or proper, genuine and realistic consideration, as required by s.79C(1)(b), specifically to the economic impacts of the development, in that Council had before it, at the time of granting consent, no expert material more up-to-date than the Patrick Partners report dated May 2005. This ground of challenge will be considered in section F of this judgment.
D. Deferral or inadequate consideration of essential matters?
44 It has been long accepted that the availability of the power to grant a deferred commencement consent does not relieve a consent authority of its obligation to consider all matters requiring its determination under s.79C of the EP&A Act (Weal at [94]), relevantly the impacts of the proposed development and the suitability of the subject site for it. A deferred commencement consent is a "final" consent, but its commencement date has yet to be settled. Weal, and see also Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-6. In Mison, Clarke JA (with whom Meagher JA agreed) stated at 740:
Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final.
45 GPT submits that Council, by imposing its deferred commencement conditions (a), (b) and (c), (par [37] above), was actually deferring the impact assessments required of it by s.79C.
46 GPT attached to its submissions a table comparing the relevant provisions of the 1990 LEP, the 2005 draft LEP, and the 2006 draft LEP, as they would apply to the subject land. There is also a useful brief commentary on them at Exhibit 1, tab 8, pp 25-26. Each regime is substantially different from both the others, and GPT asserts that Council "impermissibly deferred" consideration of the draft instruments on display as at 21 August 2006, and urges the Court to infer, from the lack of specific consideration of those draft instruments in the documents before Council on 21 August 2006, that Council failed to consider them. In the absence of direct evidence, such an "inference should be drawn only after anxious consideration by the Court". Weal at [83]; Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 ("Hale"), at 345; Currey v Sutherland Shire Council and Others (1998) 100 LGERA 365, at 373.
47 GPT relies on several passages in the judgments in Weal to require more of the Council in this regard than what GPT's submissions (par 31) calls "simple advertence" to such draft instruments. See Weal at [13] and [80]. The consent authority must give "proper, genuine and realistic consideration" to them: Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277 ("Kindimindi") at [74]-[79].
48 Under the 2006 draft new LEP and DCP, retail premises exceeding 400 square metres would be prohibited in the zone where, if the draft instruments are implemented, the subject land will fall. This is a significant departure from the position under the 1990 LEP, which applied as at the original consent date, 1 August 2005 (Exhibit 2, tab 22), and from provisions in the 2005 draft LEP (Exhibit 2, tab 25 - which was not exhibited as at 1 August 2005), and there is no question that Council, as at 21 August 2006, was required to take the 2006 draft instruments into account in determining the DA.
49 On the other hand, the suite of documents placed on exhibition only ten days prior to the Council's decision to approve the developments were significant in nature; they flowed from very detailed work by Council and the Department of Planning; they involved extensive stakeholder consultation (see Exhibit 2, tab 17, and tab 27, pp3-4), over a long period; and they were drawn to Councillors' specific attention (Exhibit 1, tab 16). Belmorgan's written submissions (at par 19) highlight where, in the various Council papers, Councillors' attention was drawn to significant changes the documents would make, relevant to this project. The conditions of the deferred commencement consent specifically require that their provisions be addressed.
50 In Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 ("Hospital Action"), Pearlman CJ said (at 195):
… the material from which the state of mind of the Council can be inferred is not limited to what occurred at the Council meeting, or the content of material actually or constructively before the Council in relation to the application the subject of the Council's decision. Councillors do not make decisions in a vacuum; they have local knowledge and general knowledge which is available to inform them on issues which they have to consider …
See also Hale, at 346, and Somerville v Dalby and Others (1990) 69 LGRA 422, at 429.
51 In this case I can identify no "important aspect of the development", including the existence of draft new planning instruments, which the Council deferred "for later decision", apart from the fact that the internal configuration and external façade and setback of the project needed to be redesigned to achieve objectives articulated by Council at the time of consent, with the necessary redesign to be informed by various elements of those proposed new planning instruments.
52 In summary, Belmorgan sought approval for a major entertainment and leisure focussed development, including cinemas, offices, retail and substantial on-site parking. Council ultimately consented to the proposal, but required its redesign by Belmorgan, in consultation with both Council and the Department of Planning. The draft development control plan was to inform that process. No elements of the DA proposal - which was, it must be remembered, for only what Belmorgan saw as Stage 1 - were deleted, save for anything which did nothing other than, effectively, set the platform for the mooted stage 2. No new elements were to be added. Setbacks were to be provided, and all on-site parking was to be placed below street level.
53 There is no evidence of any failure by Council to give proper, genuine and realistic consideration to the draft new planning instruments then on public exhibition, and it simply does not matter that they were not addressed in specific detail in the Council reports regarding the project. Hill v Woollahra Municipal Council and Others (2003) 127 LGERA 7. It is clear, from all the evidence, that Councillors took a keen interest in this DA at every stage - none of the recommendations put to them at the various meetings where the project and the site were considered were taken lightly, and several Councillors asked for their names to be recorded as voting against resolutions that were carried. I conclude that no essential s.79C considerations were deferred. The Council clearly spelt out what it agreed to, and set out to work with the proponent and the Department to achieve it.
E. Significantly different development?
54 The Mison principle may be stated in the words used by Priestley JA (23 NSWLR at 737):
[I]f the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made.
55 The Mison principle still stands, but must be considered and applied against the background of several subsequent amendments to the EP&A Act, including sections 80 and 80A. Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376 ("Warehouse"). See also Basten JA's analysis in Kindimindi.
56 Obviously, the need to relocate parking below street level, have a wider setback, delete elements related to the planned stage 2, and have regard to movement in Council attitudes on development control, would be expected to involve redesigning the project to some extent, with possible changes in the layout and appearance of the building. Council was obviously content for that to be pursued jointly by Council officers, the proponent, and the Department of Planning.
57 The test of validity is not whether the presentation of the development might alter during that process - as it would in very many cases involving a deferred commencement consent - but whether, in truth, the development itself will be significantly altered by the process.
58 I do not accept GPT's submission (in par 39) that invalidity flows from the detail of the redesign being "unknown" at the date of decision to grant the deferred commencement consent, nor its submission (in par 42ff) that the conditions in this case offend the requirements of finality/certainty. In Kindimindi, Basten JA (at [28]) expressed the view that "a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development".
59 It is clear from the evidence summarised above that all parties knew precisely what development the consent authority was approving, and what further work was required before the closely involved regulatory authorities, namely the Council and the Department, would jointly agree that the consent would become operative. Sections 80A(1) and (4), purposively construed, are not offended - and outcomes, objectives and criteria for their assessment were clearly identified. Kindimindi at pars [29]ff, e.g. [59].
60 To take the carpark issue as one example: Section 80A(1)(a) envisages conditions relating to any matter in s.79C of the Act, and s.80A(1)(g) permits conditions to modify details of the development in the DA. Section 79C(1)(a)(ii) provides that draft LEPs are of relevance. Clause 22C(1) of the draft LEP (Exhibit 2, tab 28) requires that parking is to be provided in accordance with the draft DCP. Clause 4(h) of the draft DCP (Exhibit 2, tab 29) requires that, for commercial developments within the proposed "city edge" zone, on-site parking is to be accommodated underground, or otherwise integrated into the design of the building. Council opted for the former option. In the result, s.80A operates to permit the relevant condition even if it may be thought to contravene the Mison principle.
61 When considering whether a consent leaves open the possibility of a significantly different development, an evaluative judgment is required, and the whole development must be considered in context. Kindimindi at [54].
62 I agree with Belmorgan's reliance (at pars 34-36 of its submissions) on Schroders Australia Property Management Ltd v Shoalhaven City Council and Another (1999) 110 LGERA 130, where there were 43 amendments in total, affecting, as in this case, internal configuration, setback, external presentation, and car-parking. Pearlman CJ said, at [93]:
In my opinion, the essential nature of the proposed development remained the same before the amendments as after them. It was a development comprising a discount department store, a supermarket, specialty shops, a community centre, car parking and landscaping, and it remained of that essential or material nature after the amendments had been made. The amendments are, in my opinion, matters of design, configuration and appearance. Whilst some of them may be significant, they do not change the essence of the development as initially proposed.
63 I do not accept that there has been a significant difference made to the development - all existing buildings are still to be demolished, all the proposed uses or elements remain, the building envelope remains the same, and the movement below-ground of all parking has caused a logical reconfiguration of some internal spaces.
64 In so far as the subsidiary challenge in POC 16 asserts that the deferred commencement conditions fail for lack of finality or certainty, I cannot accept the submissions made by GPT, which concentrated on conditions (b) and (c).
65 The challenge clearly fails regarding condition (a), as the appropriate setbacks are clearly defined in the draft DCP, which Belmorgan was obliged by the consent to observe. I adopt, with respect, also the comments of Biscoe J on the subject of setbacks in GPT No.1 at 150-151.
66 Condition (b), requiring the above-ground parking to be relocated below-ground is, as I observed above (in par [60]), clearly permitted by s.80A. Likewise, the various components of condition (c) are clearly permitted by s.80A(1)(a) and/or (g). See Warehouse, per Hodgson JA at [89]; and GPT No.1 per Biscoe J, at [90].
F. Inadequate consideration of economic impacts?