Investa Nominees (2) Pty Ltd v City of Sydney Council

1. Mr Pickles SC cross examined Mr Oliver as set out below.

Ex 4, par [35]: this is in response to the question of an imbalance between floor space and you say in response to Ms Faulkner, "That it's common for one part of a site to have more GFA than another part of the site and that doesn't constitute an imbalance". That's true isn't it while ever the site remains in a single lot, and in one ownership, because one doesn't need to worry about the balance on one part of the site to another?

The consequences of the potential for sale as a consequence of subdivision is that different lot owners might have different demands or needs, or interests?

So if one lot takes all of the floor space, or most of the floor space that pertains to the site and another lot is left with a small amount but with a covenant that restricts the ability to develop it beyond its current potential, doesn't that have a potential economic impact on the lots?

No, so as I say in this paragraph [35] (Ex 4) to the extent that there's an imbalance that is dealt with by the confidence that there's no change in effect from the current position.

But your assertion that follows is that there is no environmental, social or economic impact?

But the proposition I'm putting to you is that there may well be an economic impact might not there if the land is separately disposed of? If one parcel is sold off there's a potential economic impact about what becomes of that parcel, and it's development ability?

I think to the extent that there's any economic impact that would be the subject of whatever the future land owner, if that is a different land owner, chose to do with the site. It's not a consequence of the subdivision.

Well it wouldn't have an impact in that what's proposed here is a prospective imposition of a covenant, so any future purchaser of lot 110 would be fully aware of the effect of that covenant.

It has an impact, an economic impact on the develop ability of that parcel?

Not in any different way to what is currently occurring in the consolidated site. As Ms Faulkner and I have agreed, the FSR of the site currently is in excess of the FSR permitted under SLEP 12. So to the extent that there's any limitation or impact on restricting floor space on either lot 111 or 110, that impact already occurs.

No, but you could redistribute that floor space, that's my point. If the site were left in one ownership and on one lot, you can redistribute - knock down the tower and the carpark and put the floor space on any part of the site you so desire?

No, that's not correct. It's not a redistribution of the existing floor space because that is in excess of the current FSR You would be seeking consent for a whole new development application.

Once they are in separate ownership, then they have imposed upon them with the covenant the carpark lot has imposed upon it an inability to achieve more?

That's no different to the imposition currently enforced because of the SLEP FSR standard that limits the amount of floor space across the confined site. There is no change.

Yes, but across a bigger site that still vests that single lot owner with a lot more flexibility as to where they place that floor space, doesn't it?

To some extent, but I think if you look at the site area of both of the proposed lots, these are very large sites compared to other sites within the Sydney CBD. We're not talking about the extreme example of carving off 3,000m2 and leaving 100m2 lot. We're leaving two sites that are both well in excess of any kind of ... site area requirement of either the SLEP or SDCP. So we're not talking about an extreme situation, we're talking about two very readily developable lots.

But it's not correct to say that it has no economic impact upon the new lots, it does have an economic impact upon those two lots as they are subdivided? One has all the value embedded in its floor space, and the other one has the value embedded only in its carpark?

The covenant is just reflecting the existing situation. ...... I don't agree that there is an impact because that covenant is just reflecting what is currently there and the restrictions that currently apply.

(1) Is the FSR control in cl 4.4 of SLEP 12 exceeded as a consequence of granting consent to the DA?

(2) If the answer to (1) is yes, does the Clause 4.6 Variation Report (Ex B) satisfy the tests in cl 4.6 of SLEP 12?

(3) Is the stratum subdivision orderly and economic use and development of the Site?

1. The basis for which consent may be granted for subdivision is found in cl 2.6(1) of SLEP 12, which relevantly states:

(1) Land to which this Plan applies may be subdivided, but only with development consent.

1. Accordingly, subject to the considerations in s 4.15 of the EPA Act, the proposed subdivision is permissible with consent.
2. The DA is for a subdivision simpliciter, it does not propose any change of use, to alter the existing uses or to alter any of the existing structures on the Site. There is no legal requirement on the Applicant to nominate a future use for a simple subdivision of the Site pursuant to SLEP 12 and SDCP 2012.
3. The Court in Parrott v Kiama [2004] NSWLEC 77 revised 16/03/2004 (Parrott) recognised at par [17] that it is usual practice in Australia to subdivide land without future constraints on development of that land.
4. However, the exception to the usual practice is articulated in the planning principle where the Court in Parrott stated at par [17] (Planning Principle):

"...a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them."

1. The planning principle is not engaged in the circumstances of this appeal because:

(1) The resultant lot sizes do not offend any development control in the SLEP 12 or any other control in SDCP 2012;

(2) The Site is not environmentally sensitive; and

(3) The use and built form on the Site will not change as a result of the proposed development, as such there will be no impact on the neighbours.

1. In Shoalhaven City Council v Lovell (1996) 136 FLR 58 at p 62, fourth par, Gleeson CJ regarding impact of a subdivision on flight paths:

"In my opinion, there were some matters affecting such issues which were proper to be taken into account in the exercise of the discretion to grant or refuse consent to the subdivision. If the Regulations be, for the moment put aside, it would in my opinion be relevant in deciding whether to grant consent to the subdivision, to consider whether the subdivision involved, or was apt to lead to, the erection of structures on the land which might increase the risk to aircraft using the air base. It would be relevant to consider whether the activities apt to flow from subdivision of the land and its use would affect, for example, communications with aircraft using the air base...

It is arguable that safety and similar considerations were not in fact relevant in this case because the consent sought was a consent merely to subdivision of the land and that matters affecting the safety of the aircraft, for example, the height of structures or the interference with communications, could and should be controlled when the occasion arose to approve the erection of buildings or structures or the use of the subdivided land generally..."

1. The proposed development is not the type of development that requires the nomination of a future use, or where constraints on future buildings are required, in order for approval to be granted. The proposed development is consistent with the Planning Principle.
2. Historically and/or conventionally, the lion's share of subdivisions occurs ahead of the built form, where built form requires the subdivision in order to be carried out. In this instance, the built form is being affected and the subdivision seeks to recognise the fact of affectation or effecting of the built form and provide for a subdivision as Mr Oliver mentioned, that in his opinion, is not an unnatural dividing line between the uses.
3. Council seem to be misdirected by the concept of punitive future uses. This is just a subdivision that doesn't putate any future uses, we have current uses, and it does nothing more than effect a subdivision of the built form. It is not something that is antecedent to a future use, and the site is not one which, on any realistic assertion, could be said to be underdeveloped.
4. Under the current controls, the current uses are in exceedance of even the ratcheting provision of floor space bonuses. And it is only in the very single circumstances of complete demolition of the structure on the site, and childcare facilities, or community facilities as well, that there's a potential argument for future FSR, in the default levels of control.
5. We recognise that the subdivision results in Lot 110 having an existing FSR less than the base FSR of 8:1. So the potential concern is that armed with a site which has a FSR of 7.12:1, the owner of Lot 110, whether it's the existing owner or any other owner, might seek to avail itself of additional floor space, up to the maximum control, in circumstances where the site area has been utilised for the purposes of the overall development, in other words 'double dipping'. However, the legislative scheme pursuant to cl 4.5(2) of SLEP 12 contemplates a disparate result in terms of the allotments, that is cadastral allotments, and the floor space on them, when they are utilised - it talks prospectively, but it doesn't matter that we're talking historically upon a subdivision, together to effect a result.
6. And we would submit, that in such circumstance, where there is proffered a condition for a covenant to prevent double-dipping, there should in fact be no cause for concern, either in and of itself and particularly in circumstances where the covenant is in fact reflective of the legislative scheme. And that would ensure in fact compliance with any notion of orderly and economic development of land, because it is the manifestation of what is in the controls.
7. There is then the residual issue of cl 4.4 of SLEP 12. Our primary submission is that there is, in the circumstances of this application, no breach of cl 4.4 of SLEP 12 for the following reasons:

(1) Council's Bundle of Documents (Ex 2, p 11 under tab 2) cl 4.4(2) of SLEP 12: the maximum FSR for a building on any land is not to exceed the FSR shown for the land on the floor space ratio map. That map gives the number 8:1, leaving aside for the moment the provision for accommodation floor space in cl 6.4 of SLEP 12:

(a) FSR is defined in cl 4.5(2) (Ex 2, tab 2, p 11) as the ratio of GFA of all buildings within the site, to the site area. And cl 4.5(3) of SLEP 12 as follows:

(3) Site area in determining the site area of proposed development for the purpose of applying a FSR, 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...

(b) So that in determining the site area of proposed development for the purpose of applying a FSR, the site area is taken to cl 4.5(3)(a). If the proposed development is to be carried out only on one lot the area of that lot, so that would be existing Lot 11.

(c) If the proposed development is to be carried out on two 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 development is being carried out. Now, whether you are in the sub (a) category (Lot 11) or sub (b) category (Lots 111 and 110) the FSR number does not change. That's our primary proposition, that there is nothing in what is before the Court that is affecting the result of the maximum FSR for a building on any land that exceeds the FSR for the land, where in the before there is one lot, and in the after where there are two lots.

(2) In the definition of the site area, the reference is not to development per se, but it is to propose development to be carried out. Whilst development is defined in s 1.5 of the EPA Act, it's defined to include subdivision. It is clear that in subclause (3), what it is concerned with is the carrying out of development and where subdivision is not the use of the land. We would submit that equally it is not the carrying out of development, but rather development per se.

37 The Applicant relies upon the decision of Justice Duggan Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 (Landcorp). In Landcorp, Justice Duggan dealt with a similar issue, except the relevant control was the height of the subject building on the Respondent's Height Control Map, and the relevant paragraphs are set out below:

"[55] The development as proposed in the DA is not development that contributes to or is altering the height of the building. It is, as it presently exists, at a height of 64m and, therefore, in excess of the maximum height of 55m fixed in the Height of Buildings Map for the Subject Site.

[56] The context of this clause is that it is located in that part of the LEP which is directed to the provision of development standards for new development. It manages change. To read the clause in this context it can only be relevantly operative where the development proposed creates some exceedance to the height of a building as objectively determined by reference to the objective means of measuring height as provided for in the LEP."

1. In relying upon the decision in Landcorp, regarding cll 4.4 and 4.5 of the SLEP 12, the application of FSR is about new buildings. Clause 4.5(3) of SLEP 12 applies to two lots, but it will not create any additional floor space on the grant of consent to the DA and therefore this DA will not result in a breach of cl 4.4 of SLEP 12 as appropriately constructed.
2. Clause 4.5(9) provides a discretion by the use of the word "may" to permit the consent authority to impose a covenant to prevent double dipping. The proposed development, namely the existing uses are to be carried on, and the area of the lots are combined for the purposes of determining the FSR. There is no breach of cl 4.4 and therefore no need for a cl 4.6 variation of development standard report.
3. Council contends in Contention 2 of Ex 1, SOFAC, that the stratum subdivision of the Site will not result in orderly development of the land. In fact, the converse is the case, especially when it is acknowledged that the subdivision reflects, and mirrors, the disparate uses on the subject land.
4. The DA does not seek consent to change the lawfully approved uses or structures currently on the Site. In this respect, and as relevant to this appeal, it is to be noted that subdivision of itself, does not involve the use of land: Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at [205] (Smith), Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448; (1974) 34 LGRA 151 at [152]; Wehbe v Pittwater Council [2007] NSWLEC 827at [26].
5. Moreover, the Court in Smith stated at par [250]:

"[a]pproval of subdivision is approval of subdivision simpliciter and not approval of subdivision for any particular purpose, or with a view to the erection of some particular sort of building, either in the sense that it alone restricts the owners or in the sense that, by approving the particular subdivision, the Council must be taken to have approved some particular sort of building being erected upon or some particular use being made on the land."

1. As the DA is for subdivision simpliciter, this application is not the appropriate application to consider the possible future uses of the Site. In this regard, the Court in Mirvac Projects Sydney Pty Ltd v Council of the City of Sydney [2003] NSWLEC 219 (Mirvac) relevantly stated at [35] (emphasis original):

"...what a future applicant might seek to do does not constitute present disorderly development. Any such application would require consideration by the relevant consent authority and the satisfaction of that body that any such proposal complied with the aims and objectives of the LEP. If that body were not so satisfied and considered that the proposal would result in disorderly development it could reject the proposal on that ground."

1. Accordingly, the DA ought to be considered an orderly development as it does not propose to change the existing lawful use and built form of the Site as such consideration is for any future development application.

1. I shall deal firstly with the planning principle in Parrott, and then the decision in Landcorp, and then revert to the contentions. The planning principle in Parrott is only marginally relevant in this case, obviously because this isn't a case where there are no buildings on the land. But that does not mean that nothing needs to be considered about the constraints that potentially might arise from future redevelopment of the Site. Whilst it is normal practice in Australia to subdivide land without the constraints of buildings that could later be built, I've adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual or environmentally sensitive, or where significant impacts on neighbours is likely, and need careful design to minimise them.
2. So unlike a scenario where you have a subdivision of vacant land, where you might have to consider future buildings, the constraints in the context of a site which already has existing buildings, is such that it has the potential to need to consider the impacts on, not only neighbours, but on the people on whose land the buildings have already been built. And the potential for future redevelopment of those sites to affect the redevelopment of those buildings.
3. I am relying on the last sentence in par [17] of Parrott:

"I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them."

1. Now, we're dealing here with a constrained scenario, in the sense that the existing buildings provide a constraint to future development, by reason of the sheer fact that this being a plan proposal for stratum subdivision, is based upon the framework of the existing buildings. It means that there will be a significant degree of complexity in the redevelopment of either of the two buildings that are on this land, because of the need to take account of the adjoining owners' desires and wishes, and indeed the impact that such construction might have upon the adjoining owner, should the two lots be in separate ownership. It adds a layer of complexity to the ability of either lot owner in the future to redevelop their land, and that is a matter that goes to the orderly and economic development of the land. That needs to be considered in the context of whether or not to approve the subdivision.
2. Next I shall deal with Contention 1, and the need for a cl 46 variation of the development standard in cl 4.4 of SLEP 12. In relation to Landcorp, there is a significant difference between the control which her Honour was considering in Landcorp which related to the height of a building, and the control for floor space ratios. The reason is that the definition of FSR in terms has two integers:

(1) The GFA of the buildings; and

(2) The site area.

1. Whereas in Landcorp, where the height of the building was not changing, it did not have two integers, it only had one. The sole question for her Honour was: what is the height of the building on the land or proposed on the land? Given that the proposal for a sign did not alter the height of the building, it stood to reason that no cl 4.6 was required because the development was not changing that facet.
2. In this case we are dealing with the FSR, and the definition of FSR is in cl 4.5 of SLEP 12. The FSR of buildings on a site is the ratio of the GFA of all buildings within the site, to the site area. Council accepts the Applicant's position that the development being carried out on one lot, might be said to not be being changed. Likewise, if you regard the development as two lots, the FSR is not changing. But the problem with cl 4.5(3)(a) of SLEP 12 is you have to do the exercise twice, because the proposed development is being carried out on one lot, but it is the subdivision of one lot into two. From one lot which has a FSR as it currently exists, to two lots from which you have two potential future developments. And the potential developments on each of those lots, or indeed the existing development on each of those lots, has a different calculation because it has a different lot area. The situation here is that the proposed development is effecting the division of one into two, which means you then have to understand what effects the development, the subdivision, has on the FSR of the buildings on the site within which that building is located. Because that's the effect of the development.
3. And indeed, her Honour gives some indication that it's not the case for all circumstances, that the fact that you are not physically changing something, that might not result in the need to have a variation of development standard report pursuant to cl 4.6 of SLEP 12. Her Honour said at paragraphs:

"[56] The context of this clause is that it's located in a part of the LEP which is directed to the provision of development standards for new development. It manages change. To read the clause in this context, it can only be relevant operative, where the development proposed creates some exceedance to the height of a building, as objectively determined by reference to the objective means of measuring the height as provided for in the LEP.

[57] This does not have the consequence that only wholly new buildings will be subject to the development standard in this clause. In some cases, this may be where an alteration to an existing building alters the nature and extent of an existing exceedance, or where a compliant existing building is altered such that, it exceeds the height of buildings map."

1. So, in the circumstances which arise here is that, although there is no wholly new building, or even part of a building that is being altered in this context, one of the integers of the determination of the FSR, is being altered. So that the proposed development is being carried out on one lot, yet will result in two. And therefore, there are three FSR calculations which need to be done. The existing development has one FSR, but it technically does not need to be done. Because it is not the proposed development.
2. In applying cl 4.4(a) of SLEP 12, regarding the objective of providing sufficient floor space to meet anticipated development needs for the foreseeable future, the problem with this DA is, in both cases, in respect of both lots; Lot 111 has no further potential because it already very substantially exceeds the FSR on that lot. And Lot 110 would have very limited potential on its own, but with the covenant, which is a necessary consequence to prevent double-dipping, and the appropriate application of cl 4.5(9) of SLEP 12 to the site which was required to be consolidated as a consequence of its original development, it then has no development potential either.
3. That has the consequence of infringing or being unable to achieve any prospect of providing additional floor space that feeds in to objective cl 4.4(d) of SLEP 12 to ensuring that new development reflects the desired character. Although it is true that this development doesn't change the character of this site, the fact is that it will freeze or preserve what is there in terms of floor space availability. It simply means that there is no real prospect of the redistribution of floor space on this site, or a fundamental change in the way in which the buildings address themselves in the locality.
4. That is my submission; it will likely result in the entrenchment of both buildings, essentially in their current form. The tower will be unable to readily fill in the colonnade or improve the amenity on the podium level, and the car park will probably find itself in the position of being unable to add substantially, if at all, to its height or scale, because it has the effect of the covenant, leaving the carpark use as being the highest and best use of that site.
5. The proposal is contrary to the orderly and economic development of the land and the DA should be determined by refusal.

1. The use of the Site is an extant use. No reason to suggest it is one that requires a s 4.6 variation under SLEP 12.
2. The Applicant embraces the reference by Council to par [57] of Landcorp. If there was to be more FSR proposed, there would be a breach of the FSR development standard to Lot 111. There is no extra floor space proposed.
3. As to the proposition that any proposed development after subdivision would be considered a breach of the FSR control, any proposed subdivision does not change the FSR as it is a subdivision. The FSR controls arise because of the 1986 consent; that is a right in rem which runs with the land. The subdivision may change the cadastral boundary but in the circumstances of land use there is no change.
4. As to cl 4.4(d) SLEP 12, the desired future character of the locality:

(1) Floor space for the foreseeable future: already done.

(2) Desired future character: already done.

(3) Environmental planning grounds: envelope with Carpark Lot 110 with FSR 7.19:1 - control 8:1 - controlled by covenant.

(4) Reset if demolished.

(5) Environmental grounds: the existing FSR for Lot 111 is as a result of a mathematical exercise - no alteration to the built form. The subdivision entrenches the current use. The current uses for FSR are 11.12:1.

1. The appeal by the Applicant and description of the proposal has been set out above, as have the provisions in the EPA Act which give the Applicant the right to appeal the deemed refusal of the DA.
2. I note under tab 7 of the Class 1 Application filed 31 January 2023, that owner's consent was given to the DA in accordance with s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021.
3. The Court has power to hear and determine the appeal as it falls within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the LEC Act, and the Court exercises its powers and functions under s 16(1)(a) of the EPA Act and s 39(2) of the LEC Act.
4. Contention 1, and Issue No. 1, both raise the question of whether by granting subdivision, the FSR is changed so that it is such as to warrant a refusal of the DA. If necessary, a variation of development standard report is available to the Applicant (Ex B): is it required? And if yes, does it give sufficient reasons to vary the development standard?
5. The FSR Table (Ex 4, p 6) provides details of the GFA, Site area and FSR in the existing development (1986 consent), together with the proposed Lots 110 and 111. As the built form is not changing, the addition of the GFA and Site area for Lots 110 and 111 equals the existing GFA and Site area for the undivided Lot 11.
6. For the extant development on lot 11, the FSR at 11.12:1 exceeds the current control of 8:1 (and total permitted FSR of 9.56:1), but did not exceed the FSR control when consent was originally granted in 1986.
7. There have been various changes to the planning controls since the 1986 consent, and in the future there will continue to be changes to the controls. (Tcpt 15/11/23 Ms Faulkner in cross examination, p 40 lines 22-49, and p 40 lines 1-5).
8. If proposed Lots 110 and 111 are taken together, the FSR remains 11.12.1.
9. If the proposed Lots 110 and 111 are taken as wholly independent lots, the FSR on subdivision of Lot 110, is 7.12:1, and Lot 111, 17.93:1.
10. In relation to Lot 110, to reflect the FSR on Lot 11, the Applicant has agreed to Condition (3) in the Conditions of Consent in Annexure A, which prevents the allocation to additional FSR to proposed Lot 110 - this is a reflection of the total FSR for Lot 11 where the Carpark/Podium transferred its right to FSR to the Tower.
11. The legislative scheme provides for transfer of FSR from one lot to an adjoining lot, whether or not the two lots are in the same or disparate ownership, pursuant to cl 4.5(9) of SLEP 12.
12. Both parties rely on the planning principle espoused in Parrott, the Applicant submitting that the planning principle is not engaged in relation to providing constraints for future buildings, whereas the Respondent relies upon the last sentence of Parrott (pars [45-48] above). The Council submits that the last sentence should be taken into consideration in whether or not to grant consent to the DA where the subdivision is of a site which has already been developed by the construction of buildings, particularly in relation to:

(1) The potential impacts on neighbours;

(2) The potential impacts of the owners of Lots 110 and 111.

1. I find the DA complies with the planning principle in Parrott, and that the submissions by Council are not upheld for the following reasons:

(1) The proposed allotments are not smaller than usual (Tcpt 15/11/23 Mr Oliver p 48 Lines 40-50, pp 1-4);

(2) The proposed lots are not environmentally sensitive; and

(3) The stratum subdivision is dividing Lot 11 into proposed Lots 110 and 111. There is no change to the built environment. Therefore there are no significant impacts on neighbours as there will be no change to the built environment or its use.

1. Both parties rely upon the decision of Duggan J in Landcorp; the Applicant relies upon pars [55-56] and the Respondent relies upon pars [56-57]. I have also considered the following paragraphs of her Honour's judgment:

[46] The contention raised by the Council turns upon the construction of the provision of cl 6.17 of the LEP. The proper approach to the construction of statutory instruments is the same as for legislation: Environment Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174; (2019) 101 NSWLR 245 at [257]. In broad terms the meaning is to be determined from both the text and the context of the provision and where a construction would promote the object or purpose underlying the instrument such is to be preferred over a construction that would not: s 33 Interpretation Act 1987.

[47] The subject provision of the LEP is expressed in terms of an outcome, namely that if a development as proposed is approved it will result in the building projecting higher than the identified Sun Access Plane. The enquiry is, therefore, directed not to whether the building on which the development is proposed projects through the Sun Access Plane (present factual situation) but whether the development proposed will have the consequence of the building (that is, the development proposed) itself causing a projection higher than the Sun Access Plane (proposed future situation).

[48] In the context of the text of the clause it matters not whether the signs themselves are a "building" (being a part of a structure or building) as the clause is looking to the consequence of the development proposed. On the agreed facts of this DA the answer must be: alter or change the existing projection above the Sun Access Plane.

[49] This is not to say that all development applications that rely on a building that is in existence above a Sun Access Plane will not be subject to cl 6.17 where a proposal operates to increase the loss of sunlight from a projection into the area above the Sun Access Plane. It would result in a building that was higher that the plane and, therefore, be subject to the provision of cl 6.17.

[50] This approach to the construction of the text of the clause is also consistent with the context in which the clause is found. The stated objective of the clause is to maximise sunlight access. The concept of maximising sunlight access can only have application where a proposal will have the capacity to affect the desired level of sunlight access (by decrease or the possibility of increase if, by way of example, the building was to be demolished and rebuilt). The provision is to control projections into the plane that may reduce the amount of sunlight on certain nominated features of the public domain and sandstone buildings. This context indicates that where the building exists and there is no change to the sunlight impacts of that building from other development on the Subject Site (including on that part of the building that projects higher than the Sun Access Plane) the provisions of the clause are not relevantly applicable to that development. This context is reinforced by the similar terminology of a "result" the exceptions expressed in cl 6.18.

[51] Accordingly, the signs proposed are not development that will result in any building on the Subject Site projecting higher that any part of the Sun Access Plane relevant to Subject Site.

[52] This contention also turns on the construction of the LEP as a statutory instrument and the same considerations to that task as were identified at [46] above apply to the task of construing the meaning of cl 4.3 and determining whether it relevantly applies to the facts of this DA.

[53] The text of the operative part of cl 4.3 makes the clear statement that the height of a building on land is not to exceed the maximum height fixed by reference to a map. The Dictionary to the LEP defines the manner in which the building height or height of building is to be determined as:

building height (or height of building) means -

(a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or

(b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

[54] The difference in the defined term ("Height of Building) and the term used in the clause("Height of a Building") is of no consequence as the clause refers to the particular building in question and the defined term is formulated such that it refers to the determination of the height of any building and then in its substantive provisions relates to "a" building for the purposes of the application of the means of measuring height.

[58] Contrary to what was submitted by the Council this clause cannot be construed by a consideration of the merits or the particular characteristics of a building that exceeds the height provided for in the map. The Council's suggestion that the text of this clause applies even where there is no increase in height proposed, because in this case the quality of views and the relationship to heritage buildings and special character areas are relevant considerations and the relationship of height to those features, is referenced in the objectives of the clause. Those features are identified in the objectives as the reason why the clause is formulated and the heights fixed in the map are determined; they are not drafted to identify circumstances in which the provision of the control will operate. That is, it is not intended that a merit consideration of impacts would be necessary to determine if the clause is operative on a particular development. Whether the clause applies is intended to be objectively ascertained. The height of a development and the impact on matters such as the views and the relationship to heritage areas may be relevant to the consideration of the merits under s 4.15 of the EP&A Act but it does not have the consequence that it is subject to the operation of the development standard and requires a variation pursuant to cl 4.6 of the LEP to be permissible development.

[59] Further, I accept the Applicant's submission that the definitions of words must be read subject to the context in which they are used. In this clause the reference to a building is not a reference to anything that may fall within that defined term but to a thing so defined that has the consequence of the building, objectively measured, exceeding the maximum height. In the circumstances of this case, it does not matter if the sign can be defined as a "building"; the sign does not have the consequence of the breach of the Height Control - the existing building upon which the sign is to be affixed already breaches it, such that the clause does not apply to the elements affixed to the existing built form."

(1) The meaning of the provision of cl 4.4 of SLEP 12 in 'broad terms ..... is to be determined from both the text and the context of the provision and where a construction would promote the object or purpose underlying the instrument such is to be preferred over a construction that would not" (par [46]).

(2) The enquiry is direct not to whether the building on which the development is proposed exceeds the FSR control, but whether the development proposed will have the consequence of the building (that is, the development proposed) itself causing an increase in the FSR in breach of the FSR control in cl 4.4 of SLEP 12 (par [47]).

(3) The objectives of cl 4.4 have already been met by the extant building constructed pursuant to the 1986 DA.

1. The town planners agree that the base FSR for the Site as per cl 4.4 and the Floor Space Ratio Map of SLEP 12 is 8:1, as determined by cl 4.5 (2) of SLEP 2012 and the total FSR for the Site which is available under SLEP 12 is 9.56:1 (Ex 4, p 5 pars [14-18].
2. The GFA for the Site does not change after the stratum subdivision, taking the GFA of both Lots 110 and 111.
3. The 1986 consent permitted an FSR for the Site of 11.12:1 - an exceedance under the current controls of 1.56:1.
4. On stratum subdivision the permitted FSR for Lot 110 is 8.17:1, and the actual FSR is 7.12:1, an FSR of 1.05:1 less than that permitted under the current controls.
5. On stratum subdivision the permitted FSR for Lot 111 is 10.5:1, and the actual FSR is 17.93:1, an FSR of 7.43:1 more than that permitted under the current controls.
6. The Applicant submits, in applying Landcorp, that the application of FSR is about new buildings. The Applicant has accepted the Council's request for a covenant on Lot 110 restricting the floor space to the present level, Lot 110 having transferred its floor space to the proposed Lot 111 in the 1986 consent. Consent to this DA will not create any additional floor space, and therefore the DA will not result in a breach of cl 4.4 of SLEP.
7. The Council submits, applying par [57] in Landcorp:

(1) That although there is no building being altered in this context, one of the integers of the determination of the FSR is being altered. As a result of the transfer of floor space from the Carpark to the Tower element of the 1986 consent, and the covenant being registered on title for Lot 110 (Ex 6, Condition 3 and Ex 7, Draft covenant), neither proposed lot has any prospect of providing additional floor space that feeds into objective (d) in cl 4.4 of SLEP 12 to ensure that new development reflects the desired character of the area.

(2) In Landcorp there was only one integer to be determined - the height of the building measured from ground level. In this DA the stratum subdivision requires two calculations to be made in relation to ascertaining the FSR for proposed Lots 110 and 111.

1. The 1986 consent is a right in rem, and was compliant with the FSR control when it was granted in 1986. The stratum subdivision does not require any alteration to the built form on the Site.
2. Noting the Site is already in breach of the current FSR control, the consequence of the stratum subdivision is that:

(1) Lot 110 will have an FSR below that available to it under the present control; and

(2) Lot 111 will have an FSR above that available to it under the present control.

1. In order to maintain the status quo for the FSR on the Site, Council has imposed a covenant on Lot 110 pursuant to s 4.5(9) of SLEP 12 to prevent double dipping. The covenant prevents (at the least creates a fetter on) any further FSR for Lot 110.
2. There is no change on the Site in relation to the FSR, and the covenant ensures that the DA does not change that fact.
3. Clause 4.4 of SLEP 12 is prospective, not retrospective. The objects refer to the future development; not reassessing past development, is "(a) to provide:, "(b) to regulate", "(c) to provide" and "(d) to ensure that new development".
4. In relation to Contention 1 (Issues 1 and 2), the DA is not development for a building, or buildings, which exceed the maximum FSR for the Site in 1986 when consent was granted, and there are no building works proposed in this DA. Further the covenant in Condition 3 prevents any further FSR on Lot 110, maintaining the status quo of the FSR on the Site. Therefore, the FSR development standard in cl 4.4 of SLEP 12 does not apply to a determination of the DA. It follows that there is no need for a cl 4.6 variation of development standard report pursuant to SLEP 12, and I have not considered it (Ex B).
5. It remains for me to address Contention 2 (Issue 3): whether or not the DA satisfies s 1.3 of the EPA Act, and in particular s 1.3(c):

(c) to promote the orderly and economic use and development of the land

(1) Smith, in that the DA is for the approval of a subdivision simpliciter, and not for any particular purpose on the Site.

(2) Mirvac, in that it is not appropriate to consider the future uses of the Site.

(3) Mr Oliver, in cross examination, responded to the following question:

"Pickles: Yes, but across a bigger site that still vests that single lot owner with a lot more flexibility as to where they place that floor space, doesn't it?

Witness Oliver: To some extent, but I think if you look at the site area of both of the proposed lots, these are very large sites compared to other sites within the Sydney CBD. We're not talking about the extreme example of carving off 3,000m2 and leaving 100m2 lot. We're leaving two sites that are both well in excess of any kind of ... site area requirement of either the SLEP or SDCP. So we're not talking about an extreme situation, we're talking about two very readily developable lots."

(4) The legislative scheme provides for two lots, whether in disparate ownership or one ownership, to transfer FSR from one lot to another. (cl 4.5 (3)(b) of the EPA Act).

(5) The consent authority changes the planning controls over time, as agreed by Ms Faulkner in cross examination. There is nothing to prevent the consent authority changing the controls in the future, but they will only be applicable if there is a development application on one or both of the allotments to construct a new building or alter the existing buildings.

1. The Council submits that the objective in s 1.3(c) of the EPA Act has not been met because of:

(1) The degree of complexity of the redevelopment because of the need to take account of the adjoining owners desires and wishes; and

(2) The five pylons on Lot 110 supporting Lot 111 introduce a further degree of complexity when considering redevelopment on either Lot 110 or 111.

(3) It adds a layer of complexity to the ability of either lot owner in the future to redevelop their land, and that is a matter that goes to the orderly and economic development of the land.

1. I do not consider that the reasons set out by Council in par [92] above are such as to ground a refusal of the DA. Numerous properties in the Local Government Area of The City of Sydney require the proponent to address legacy issues on the subject land as the development is usually the redevelopment of a brownfield site.
2. The Council's proposition pursuant to cl 3.8 of SDCP 12 is that subdivision is not supported as the subdivision "can create a barrier to achieve new higher density and more sustainable development". That provision applies to properties being strata titled, and sold into multiple ownerships resulting in a fetter on redevelopment because of fragmented ownership. That argument does not apply to this DA where the resultant Lots 110 and 111 will, in the worst case scenario, result in 2 large city blocks (well in excess of 1,000m2 each) for possible development of high rise buildings, being in two ownerships.
3. I accept the submissions put forward by the Applicant, and consider that the DA meets the objectives in cl 1.3(c) of SLEP 12 in that the DA provides for the orderly and economic use and development of the land.
4. I note that the parties have agreed the Conditions of Consent in Ex 6.
5. In accordance with s 4.16(1)(a) of the EPA Act and s 39(2) of the LEC Act I shall uphold the appeal and grant consent to the DA subject to Annexure A.

(1) The appeal is upheld.

(2) Pursuant to s 4.16(1)(a) of the Environmental Planning and Assessment Act 1979 and s 39(2) of the Land and Environment Court Act 1979, development consent is granted to DA/2022/613 (PAN-230552) for the stratum subdivision of Lot 11 in Deposited Plan 777449 into two lots at 1 Market Street Sydney, subject to Annexure A.

(3) The exhibits are retained.

32597.23 Annexure A