Grosvenor Australia Properties Pty Limited v The Council of the City of Sydney

Chase Property Investments Pty Ltd v Blue Mountains City Council [2005] NSWLEC 442; Kavia Holdings Pty Limited v Sydney City Council [2003] NSWLEC 195; CASES CITED: Mahogany Ridge Developments Pty Ltd v Port Stephens ; Council (2004) 135 LGERA 60; Meriton Apartments Pty Ltd v Fairfield City Council (No 2) [2005] NSWLEC 121

APPLICANT A. Pickles (Barrister) SOLICITORS Maddocks Lawyers RESPONDENT LEGAL REPRESENTATIVES: R. Whitford SOLICITORS Allens Arthur Robinson INTERVENOR P.W. Larkin (Barrister) SOLICITORS Clayton Utz

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11462 of 2005 Grosvenor Australia Properties Pty Limited v Sydney City Council and Rail Corporation New South Wales (as Intervenor)

JUDGMENT 1 Her Honour: This is an application for joinder under s 39A of the Land and Environment Court Act 1979 ("the Court Act") by Rail Corporation New South Wales ("RailCorp") in Class 1 proceedings which concern a proposal for two residential tower blocks above an existing multi-level carpark at 251-257 Kent Street Sydney ("the site").

2 Section 39A provides: On an appeal under section 97 or 98 of the Environmental Planning and Assessment Act 1979, the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion: (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that:

(i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal.

3 Development application number D/2004/0071 ("the DA") is for a staged development and seeks approval for the building envelope for two residential towers, described as Stage 1. It is supported by a Statement of Environmental Effects ("SEE") which addresses issues such as height, bulk, streetscape, vehicular access and parking, visual impact, heritage issues, and wind environment. There are indicative plans provided which show generally where the building envelope is intended for two 80m residential towers including their distance from the property boundary. It is anticipated that in a later Stage 2 DA there will be detailed building plans provided for a development consent to enable actual construction work. 4 The relevant sections of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") dealing with staged development are s 83B and s 83D which are as follows. Section 83B: (1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. (2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application. (3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:

(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

(4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3). Section 83D: (1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application. (2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent. (3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application. 5 The affidavit filed in support of RailCorp's motion for joinder is that of Mr Rodd Staples, the General Manager Network Development of RailCorp, and dated 12 May 2006. His affidavit describes the Metropolitan Rail Expansion Program ("MREP") as follows: The MREP involves a new heavy rail line for the Sydney Rail Network which will run from Rouse Hill in Sydney's North West, through the Sydney central business district ("CBD") and on to Leppington in the South West. It will involve approximately 13 kilometres of new surface track and 25 kilometres of underground track within rail tunnels. The transport task for MREP is to support rail travel demand which is anticipated under population and employment scenarios devised by the NSW Government. These scenarios are presently incorporated in the Sydney Metropolitan Strategy, which was announced by the Premier of NSW in December 2005. Under these scenarios, the East Hills and West Lines are anticipated to be under increasing pressure as demand between new release areas on Sydney's fringe and key inner Sydney employment areas grows. The Redfern to Chatswood component of the MREP will effectively increase rail capacity into and through the Sydney CBD by about 30%, and will also alleviate the existing pressures on city stations such as Town Hall and Wynyard.

The Metrowest Rail Link forms part of the Redfern to Chatswood Rail Link and has been under consideration since the 1980s.

6 According to Mr Staples, of particular concern to RailCorp is the potential impact of the proposal on the Metrowest Rail Link site. The site is located on part of the land identified for the construction of an underground rail tunnel as part of the proposed Metrowest Rail Link. The land on which the buildings are proposed is the subject of planning controls that require the relevant consent authority for a DA to refer DAs in relation to the land to RailCorp for comment or concurrence. He outlines the relevant planning controls under cl 80 of the Sydney Local Environmental Plan 2005 ("the LEP") and its predecessor. Further cl 11 of SEPP 63 - Major Transport Projects provides: (1) This clause applies to a development application for development on land within a Metropolitan Rail Expansion corridor that involves excavation, or other penetration of the ground, to a depth of 2 metres or more measured vertically from the best assessment of natural ground level. (2) The consent authority must not grant consent to development to which any such development application applies unless it obtains the concurrence of RailCorp. (3) In deciding whether to grant concurrence, RailCorp must take into consideration the likely effect of the development on: (a) the practicability and cost of carrying out development for the purposes of the rail expansion project concerned on the land in the future, and (b) without limiting paragraph (a), the structural integrity or safety of, or ability to operate, the project, and (c) without limiting paragraph (a), the land acquisition costs and the cost of the construction, operation or maintenance of the project.

7 According to submissions by RailCorp's counsel, because this land is in the Sydney CBD its development is regulated by the City of Sydney Act 1988 and the Planning Committee referred to therein. The effect of s 41 - s 43 of that Act is that RailCorp is not a concurring authority but its comments must be taken into account by the Planning Committee. Mr Staples' affidavit raises concerns that this DA, if approved, will require excavation work which will impact adversely on the Metrowest Rail Link site underneath. 8 The Council referred the DA to RailCorp for its comments and stated that the application involved excavation.

9 It has been emphasised to the Court by counsel for the Applicant that no building work including excavation can be undertaken on the basis of the consent sought for this Stage 1 DA. There is a letter from the Applicant's solicitors to RailCorp's solicitors stating that no excavation is intended to take place as a consequence of this DA. The Applicant argued there is simply no basis on which RailCorp can have an interest in this proposal at this stage as there is nothing to trigger concern about the impact of the proposed towers on the Metrowest Rail Link site underneath. The Applicant has not yet proposed anything which requires the imposition of conditions based on the advice of RailCorp. If any conditions are imposed in due course in relation to the Stage 2 DA there may be no issue in relation to these in any event.

Finding 10 This is a staged development application under s 83B of the EP&A Act. Section 79C applies to its assessment. The Applicant emphasised that what was sought was a concept plan for the residential tower blocks dealing with building height envelope and bulk and scale limits in Stage 1. It is to be followed by a detailed DA for Stage 2 for the actual building work including any necessary foundations.

11 While part of the basis for the motion for joinder was that the DA if approved will result in actual building work, including excavation, that is not the intention of the Applicant for development according to the Applicant's counsel. An amendment of the DA and supporting documents to that effect would aid in clarification of what is sought. I will consider the matter on the basis that an "in principle" consent for Stage 1 of a staged development is sought and that no building plans will be approved under this DA.

12 It is clear that the Applicant accepts that it is necessary for the above ground impact of the proposal to be assessed in terms of its height, bulk, character, streetscape, vehicular access and parking, visual impact, heritage issues, and wind environment impacts, given the nature of the supporting material provided with the DA. The Applicant resisted the suggestion from RailCorp that at Stage 1 of this staged development the Court also needs to consider whether: (i) the proposed development can be built without impact on the Metrowest Rail Link site, and (ii) if there is likely to be an impact it is so minor as to be acceptable. 13 At issue is whether at Stage 1 of this proposed development there also needs to be a greater technical assessment of whether an "in principle" consent to a certain building envelope above ground will impact on the Metrowest Rail Link site underneath. RailCorp argued that because of s 83D(2) the Stage 2 DA cannot be approved in a manner inconsistent with the Stage 1 consent if approved, so that the necessary assessment has to be undertaken at Stage 1.

14 The supporting SEE is simply an indication of what may be built and refers to a transfer floor to be constructed above the existing carpark to take the load of the two residential towers and that the load will be absorbed by additional columns in the carpark. Whether this is ultimately the way in which the proposed building will be constructed will not be finalised as a result of the approval of this DA, according to the Applicant, and approval is not sought specifically in this DA for that approach. That supporting material does however make clear that at this stage no excavation is considered to be necessary in order for the towers to be built and on this basis the Applicant argued there can be no basis for joinder. The assumption in the Applicant's submissions is that regardless of what form of "in principle" consent is obtained as a result of the current DA being approved, there can be a satisfactory engineering solution worked out as part of the Stage 2 development application process so that whatever conditions RailCorp considers appropriate can be dealt with then. It submitted there may be no dispute about the conditions sought by RailCorp at that stage. 15 I do not consider that it is an answer to this application to state that if the Stage 2 DA is applied for and an inconsistency arises with the Stage 1 consent, then it may be cured by seeking an amendment to the Stage 1 consent. 16 RailCorp maintained that even if no excavation work is undertaken as a result of the Stage 1 DA there needs to be a more detailed technical assessment than in the SEE because of potential issues about where the load from the towers will be distributed under the transfer floor proposal. Therefore the need for excavation of more than 2m in the future when building plans are approved cannot be ruled out. Because there is not in this Stage 1 DA, consent sought for actual physical works there is no basis on which the Court can determine the impact on a matter of considerable public importance and the supporting material with the Stage 1 DA is inadequate to enable the Court to assess this issue.

17 It seems to me that a consideration of whether an "in principle" consent at this stage for the two residential towers will impact on future development of a major public infrastructure proposal immediately below ground is a relevant consideration under s 79C of the EP&A Act. That section sets out the matters a consent authority or the Court must consider when assessing a DA. The issue clearly falls under s 79C(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, and s 79C(e), the public interest. 18 The below ground impacts are as relevant in the circumstances here as the above ground impacts which the Applicant accepts must be addressed in this DA. The amended statement of issues currently filed in the proceedings does not mention the impact on the Metrowest Rail Link site. There is correspondence from the Council's solicitors to RailCorp stating that if RailCorp is not joined as a party the Council will raise this issue and present RailCorp's reports in its case. 19 I stated at [6] in Kavia Holdings Pty Limited v Sydney City Council [2003] NSWLEC 195 that the scope of s 39A is broader than the Supreme Court Rules 1970 Pt 8 r 8, which previously applied. This has been confirmed in subsequent cases. See the decisions of Bignold J in Mahogany Ridge Developments Pty Ltd v Port Stephens Council (2004) 135 LGERA 60 at [18]; Pain J in Chase Property Investments Pty Ltd v Blue Mountains City Council [2005] NSWLEC 442 at [15]; and Pain J in Meriton Apartments Pty Ltd v Fairfield City Council (No 2) [2005] NSWLEC 121 at [6]. While RailCorp relies on each subsection of s 39, s 39(a) applies particularly, in my view. RailCorp has a particular knowledge of and concern about a major public infrastructure proposal potentially impacted on by this development. It has an important role to play in assessing development which potentially impacts on the Metrowest Rail Link. This is confirmed by the statutory instruments which apply to the Metrowest Rail Link project generally. While its role under the City of Sydney Act 1988 is not that of a concurring authority because of the particular manner in which development in the CBD is undertaken by the Planning Committee, its role is still significant in the context of this site. It should be joined as a party. 20 Greater discussion between the Applicant's engineers and those of RailCorp would have been desirable in my view given the clarification of the scope of the Applicant's DA during the course of argument on this joinder motion. While I will order joinder of RailCorp as a party I encourage that discussion to occur as soon as possible.

Orders 21 The Court orders that the Intervenor, Rail Corporation New South Wales, be joined as a party to the proceedings.

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.