Lindsay Bennelong Developments Pty Ltd v Council of the City of Sydney

Site and locality

1. The site (Lot 4 DP 1136932) is roughly square in shape with an area of about 1916sqm, a frontage of 33m to Neild Avenue and 20m to Boundary Street. It is developed with a two storey brick building used as offices and a brick and glass showroom used as a display suite. The rest of the site is currently used for car parking.
2. Surrounding development is predominantly residential in nature with retail/commercial uses on the ground floors. Adjacent to the site to the north, along Neild Avenue, is a 5 storey residential flat building with two levels of basement parking and ground floor retail/commercial. To the west of the site, is a four storey residential flat building with retail/commercial uses on the ground floor (5-11 Boundary Street). Behind this building is a seven storey residential flat building known as "Highbelle", which adjoins part of the western boundary of the site and is accessed via a narrow laneway from McLachlan Avenue.
3. The tennis courts associated with the Weigall Sports Ground are located across Neild Avenue to the east of the site. The southern side of Boundary Street, across the road from the site, is characterised by two storey terraces. On the opposite corner of Boundary Street and Neild Avenue there is a two storey with attic residential building, also with retail on the ground floor.

Background and proposal

1. The site forms part of the wider 'Advanx' development site which occupies much of the block bounded by Neild Avenue, Boundary Street, McLachlan Avenue and Craigend Street. The development as a whole has been split into three phases known as Advanx Stage 1, Advanx Stage 2 and Advanx Stage 3. The subject site is the land that comprises Advanx Stage 3.
2. A development application (D/2004/782) was given deferred commencement approval on 6 July 2005 and was subsequently activated on 6 September 2005 (2005 Consent). The approval was for the retention and refurbishment/conservation of the Advanx Hall building and an addition to the rear, demolition of all other buildings on the site, approval of the building envelopes and arrangement of uses on the site. This included the provision of commercial/retail uses, residential apartments and terraced dwellings with a maximum floor space ratio (FSR) of 2.25:1, as well as basement car parking, services and open space. This application included the site (now known as Advanx Stage 3), which was approved for terraces dwellings and the adjoining land (now known as Advanx Stage 1), which was approved for mixed residential commercial developments. The land at the northern end of the block (now known as Advanx Stage 2), was not part of the 2005 Consent.
3. A Development application (D/2006/721) was given deferred commencement approval on 14 September 2007 and was subsequently activated on 5 March 2008 (2008 Consent). The application applied to the same land as the 2005 Consent but only proposed works on the Advanx Stage 1 area. This application was for 175 dwellings within 5 new apartment buildings at 4 storeys and 6 storeys in height, 2 levels of basement car parking for 305 vehicles, commercial floor space to the McLachlan Avenue, Neild Avenue frontages and in the Advanx Building. It also included works to the heritage listed Advanx Building, associated landscaping and public domain works, consolidation of the existing 16 lots and subdivision into 7 new lots and strata subdivision. That consent has subsequently been amended 13 times. Public benefit works were required in the form of a through site link which was secured through a Voluntary Planning Agreement associated with the application. Although the consent did not involve any work on the site, it included a condition which limited the gross floor area (GFA) of a future terrace development on the site to 2496sqm and approved a FSR for the whole land of 2.25:1.
4. A development application (D/2008/841) for the site was approved for the construction of 14 terrace houses with basement parking on 1 October 2008. It approved a FSR of 1.5:1 for the site. The consent was amended twice but subsequently lapsed without being commenced.
5. A development application (D/2012/1724) was given deferred commencement approval on 25 February 2013, and was subsequently activated on 3 May 2013. This was for the demolition of existing buildings and construction of a mixed use development on the site now known as Advanx Stage 2.
6. The current development application for the site was lodged on 16 October 2014 and notified to nearby properties, including those on the opposite side of Boundary Street, in Woollahra Municipality. The applicant lodged an appeal against the deemed refusal of the application on 14 May 2015. A conciliation conference under s34 of the Land and Environment Court Act was held. The parties did not reach agreement and the conference was terminated. The applicant was granted leave to rely on amended plans on 27 August 2015 and further amended plans on 19 November 2015 (Exhibit C), which were prepared in response the comments of the experts and are the subject of the appeal.
7. The application, as amended, seeks consent to demolish the existing structures and construct a five level apartment building over a basement car parking level providing 34 car parking spaces, 41 storage areas for residents, a stormwater detention tank and plant and equipment rooms. A new ramp would provide access to the car park via a new driveway from Neild Avenue. A total of 40 residential apartments are proposed (2 x studio units, 11 x 1 bedroom, 21×2 bedroom and 6×3 bedroom. The building would extend to a maximum height of 18.44m and would provide 3837sqm of GFA.

Statutory framework

1. The site is zoned B4 - Mixed Use under Sydney Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The LEP permits a maximum height of 22m (cl 4.3) and a maximum FSR of 2:1 (cl 4.4) on the site. An additional height and FSR of up to 10% is available to a building demonstrating design excellence (cl 6.21(7)). The site is not located in a conservation area, however the Rushcutters Bay Stormwater Channel No. 84, which is listed on Sydney Water's Heritage Register, runs underneath the site.
2. The objectives of the B4 zone that, under cl 2.3(2), the consent authority must have regard to are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure uses support the viability of centres.
3. Sydney Development Control Plan 2012 (DCP 2012) applies to the application.
4. The opposite side of Boundary Street is located in the Woollahra Municipality and is within the Paddington Conservation Area.
5. At the time the 2005 and 2008 Consents were approved the site was within a Mixed Use zone under South Sydney Local Environmental Plan 1998 (LEP 1998). South Sydney Development Control Plan 1997 (DCP 1997) was also relevant. Under DCP 1997, the site had a maximum height of 12 m and a maximum FSR of 2:1 with a "bonus" of 0.25:1 for public domain works. The definitions of height and GFA/FSR were different under DCP 1997 to those in LEP 2012.

The evidence

1. The Court visited the site and heard from objectors whose principal concerns were that the proposal exceeded the height, density and form of development approved under the 2005 Consent, which is a "masterplan" for development of the site and the adjoining land. Larger buildings were permitted at the northern end on the basis that a terrace house form would be developed at the southern end to better respond to the terrace houses and the conservation area opposite the site. In their opinion, the proposed five storey residential flat building was "double dipping" and resulted in unacceptable height, bulk and scale relationship with the existing terraces. It would also result in unacceptable impacts such as privacy, overshadowing, increased parking and demand for parking.
2. Ms G Morrish and Mr B Goldsmith, for the applicant, and Ms J Nacard and Ms S Robinson, for the council, prepared expert statements and a joint report, which considered the amended plans and made recommendations for further changes that were incorporated into the Exhibit C plans. The experts agreed that the amended plans resolved the issues in dispute, other than consistency with the 2005 Consent, and that the form of development on the site does not need to be terrace housing. They also agreed that with changes to the lift and stair and a reduction in the street frontage height, the proposal would be generally consistent with the adjacent buildings. Changes to the ground level would improve street front activation and that retail uses at the ground floor are not required to provide an active street front.

Is the proposal required to be consistent with the 2005 Consent?

1. Ms Robinson considered that the proposal, as amended, was acceptable, if no regard was given to the 2005 Consent, which she considered to be a staged development consent and consequently that later applications should be consistent with it. She stated that: (a) The proposed development results in "double dipping" on FSR (b) It is unlikely that the consent authority would have supported total Advanx site FSR (c) The applicant has accepted the benefits of the Stage 1 Consent and should similarly accept the burdens (d) The consent authority made its best efforts to preserve the design principles established by the Stage 1 Consent including the approved FSR and the applicant's administrative cure is unsupportable (e) Whilst procedurally possible, the proposed amendments to cure the inconsistencies between the proposed development and Stage 1 Consent are incomplete and unsupportable (f) Approval of the proposed development would set an undesirable precedent for Master Planned (and Stage 1 DA) sites approved under the terms of SSLEP 1998.
2. Ms Robinson noted that to cure the inconsistencies between the 2005 Consent and the proposed development, the applicant proposes the imposition of a condition that would amend the 2005 Consent in accordance with s 80A(1)(b) of the EPA Act. Whilst this may be procedurally possible, she considered that the proposed amendments should not be supported for the following reasons: • The proposed amendments to the Stage 1 Consent sought by the applicant ought to be advertised/notified given the additional environmental effects that arise….prior exhibition of the subject DA does not fulfil this requirement. • The proposed amendments do not provide for a consistent and coherent Stage 1 Consent. As a consequence, the existing conditions and proposed amended conditions oscillate between references to SLEP 2012/SDCP 2012 and SSLEP1998/SSDCP1997. • The' GFA/FSR calculations provided for the site (which comply with SLEP 2012) ignore the fundamental link between the site and the Stage 1 Consent.
3. In Mr Goldsmith's opinion, the proposal would not be "double dipping" as the controls have changed to increase the development potential of the site. Also, the 2005 Consent did not create individual precincts with specific FSRs. The consent authority needs to consider the current application on its merits, which are agreed to be acceptable. Approval of the development would not set a precedent as it is unlikely that there would be similar circumstances to this proposal.
4. During the hearing, the experts provided a further joint report on the GFA/FSR approved under the relevant consents, permissible under LEP 2012 and proposed in the development application (in accordance with the definitions under LEP 2012). They agreed that due to the change in definition of GFA in LEP 2012 and DCP 1997, an increase of 6% would equate to the same FSR as that previously approved. Consequently, the 2496sqm for the site conditioned under the 2008 Consent would equate to 2646sqm under LEP 2012.

Applicant's submissions

1. Mr Tomasetti SC, for the applicant, submits that the 2005 Consent is not a "staged development application" or a "masterplan" for the purposes of the EPA Act and consequently there is no statutory requirement for the current development application for the site to be consistent with the earlier consent.
2. The 2005 Consent was approved on 6 July 2005. The EPA Act was amended on 30 September 2005 to include Part 4 Division 2A which provides special procedures concerning staged development application. It includes s 83B and s 83D which provide: 83B Staged development applications (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). 83D Status of staged development applications and consents (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. Note. Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105. (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. Note. See section 95 (2) which prevents a reduction in the 5 year period of a development consent.
3. Mr Tomasetti submits that as the 2005 Consent was approved before the introduction of Part 4 Division 2A in the EPA Act it was not a "Staged Development Application" and consequently, the requirements of s 83D(2) that any further development application cannot be inconsistent, do not apply.
4. The Schedule 6 - Savings, transitional and other provisions was also amended to add Division 3 which includes: 95 Master plans under existing instruments (1) This clause applies to any provision of an environmental planning instrument that is in force on the commencement of this clause and that requires, before the grant of development consent, a master plan (within the meaning of clause 92A of the Environmental Planning and Assessment Regulation 2000 as in force before its amendment by the 2005 Amending Act) for the land concerned. (2) While that provision continues in force, it is to be construed as requiring a development control plan under section 74D (as inserted by the 2005 Amending Act) with respect to the matters required to be included in the master plan, and in accordance with the procedures provided for making the master plan, by the environmental planning instrument. (3) Any master plan made under that provision before the commencement of this clause is taken to be a development control plan under section 74D (as inserted by the 2005 Amending Act).
5. LEP 1998 included cl 28(2) which provides: (2) The Council, before granting consent to the carrying out of development on land within Zone 5 or comprising a site are of 5000 square metres or more, must take into consideration any masterplan for the land that is available to the council.
6. The 2005 Consent was a "masterplan" under cl 28 and therefore became a "deemed DCP" that was subsequently replaced by DCP 2012. Section 6 of DCP 2012 includes specific sites that have been identified in a pre-existing DCP or masterplan (deemed DCP) and for sites with a pre-existing masterplan development consent. The Advanx land is not included in s 6 of the DCP.
7. Mr Tomasetti submits that the current application is an independent application which must be considered on its own merits under the current planning controls being LEP 2012 and DCP 2012. These controls are different to those that existed when the 2005 Consent and subsequent consents were granted. In particular, the height control in LEP 2012 is 22m, whereas it was 12m under DCP 1997. The FSR control of 2:1 under LEP 2012 remains the same as that under DCP 1997, however, the definition of GFA has changed and consequently more GFA is now permitted.
8. Furthermore, Mr Tomasetti submits that more than one consent can apply to the same land, these consents can be inconsistent and that there is no requirement to modify the 2005 Consent under s 80A(1)(b) of the EPA Act, but that this is up to the consent authority's discretion. He referred to the decision of Talbot J in Waverley Council v Hairis Architects [2002] NSWLEC 180 where His Honour at [29] and[30] states: 29 If DA 138/02 is granted, conditionally or otherwise, it will give rise to further rights. Thus, if the consent authority decides not to modify DA 133/98 pursuant to s 80A(1)(b) then the owner can proceed with either scheme. On the other hand, the consent authority may exercise its discretion to modify DA 133/98 to be in accord with DA 138/02 so that any inconsistency is removed thereby effectively locking the owner out of the option to revert to the club use. Whether or not the power to impose a condition pursuant to s 80A(1)(b) is exercised by the consent authority is a matter for the exercise of its own discretion. There is nothing in DA 138/02 that dictates the necessity for that to be done. It is conceivable, although not necessarily desirable, that the person entitled to act on the consents could rely on DA 138/02 to construct and use the lower part of the proposed building and to carry out the minor works shown in the supporting plans at the upper levels and then rely on DA 133/98 for the balance of the work. Whether there are anomalies in that approach that cannot be resolved remains to be determined by the consideration and determination of the new development application on its merits. It is, however, not so far as the Court can see, contrary to any principle established by the regime provided in the EP&A Act or otherwise. It may be complicated, inept, inconvenient, inappropriate or conceptually unsound but that does not make it incompetent. 30 There is no statutory or other legal constraint upon the number of development applications that a person can make in respect of the same land. A shopping centre complex is a demonstrative example of the way in which there can be a mosaic of development consents extending around the different parts or sections of a single site. Section 80A(1)(b) of the EP&A Act provides a facility for the consent authority to insist on the surrender of an existing development consent. It follows that the Act contemplates there can be more than one valid and operating consent in existence at the one time. The legislature has left the option or election whether to require surrender of an existing consent to the consent authority. There is no warrant to read the power to modify in s 80A(1)(b) as being akin to or in the context of a surrender as Mr Ayling suggests. Just because the result may be little or no different in some cases does not necessarily lead to the conclusion that the power to modify is always to be construed in such a constrained way.
9. In relation to the concerns raised by Ms Robinson, Mr Tomasetti submits that if the council wished to limit the FSR or preserve the design principles in the 2005 Consent this could have been done by including the "masterplan" in s 6 of DCP 2012, as was done for other approvals. Furthermore the applicant has accepted the burdens of that consent and has implemented the requirements of the consent for Advanx Stage 1 and now seeks a new consent for Advanx Stage 3 under the current planning controls.
10. In considering the application under the current planning controls, the experts have agreed that it is a suitable development for the site and on this basis it should be approved.

Council's submissions

1. Mr Clay SC, for the council, accepts that the 2005 Consent is not a staged development consent for the purpose of s 83D(2) of the EPA Act. Furthermore, he submits that the 2005 Consent is not a "masterplan", but it is a consent that remains operative. The current application is inconsistent with the 2005 Consent and consequently the 2005 Consent must be amended otherwise there would be a breach of the EPA Act. The requirements of the 2005 Consent are relevant in the consideration of the current application and the object of the EPA Act to promote and co-ordinate the orderly and economic use and development of land is not achieved and would justify refusal of the application.
2. Mr Clay referred to the Statement of Environmental Effects (SEE) submitted with the 2005 Consent, to support his submission that the 2005 Consent is not a masterplan. The SEE comments that: The requirement under Clause 28 of SSLEP for consideration of a Master Plan only applies where one already exists. Nevertheless, the intent of preparing a Master Plan for large sites is clear and has been followed in these circumstances. The Master Plan addresses all the matters raised by Clause 28 of SS LEP…".
3. Mr Clay submits that there was no statutory requirement for a masterplan to be prepared under cl 28 of LEP 1998 but the applicant chose to do so.
4. The 2005 Consent is operative and has been partially implemented. This consent imposed conditions on the development of the site, including a limit on FSR. Consequently, approving a subsequent development application, which contradicts the conditions in the earlier approval, would be a breach of the EPA Act (Moss v Kiama Municipal Council [2003] NSWLEC 165) and therefore the 2005 Consent must be modified under s 80A(1)(b) of the EPA Act. However, a condition to modify the 2005 Consent can only be imposed for a planning purpose and must be reasonable. The 2005 Consent is a relevant consideration in the current application, including the reasonableness of imposing a condition that would amend the earlier consent.
5. Mr Clay acknowledged that there is no evidence that the proposal would have any adverse impacts and that the residents' concerns about matters such as privacy, overshadowing, bulk, parking and traffic are not supported by expert evidence. However, he submits that their expectations that the "masterplan" consent would be adhered to are reasonable.

Findings

1. The particulars for Contention 1 state: (a) The proposal contravenes Clause 5 - objects-promotion and co-ordination of the orderly and economic use and development of land of the Environmental Planning and Assessment Act 1979. (b) The scale, layout, dwelling type, built form and amount of floorspace proposed within the development is inconsistent with the earlier approved staged development application which remains in force, As such, the application cannot be approved pursuant to section 83D(2) of the Environmental Planning and Assessment Act 1979.
2. It is common ground between the parties that the requirements of s 83D(2) of the EPA Act are not relevant to the application as the 2005 Consent was determined prior to the introduction of Part 4 Division 2A, which includes s 83D(2).
3. Furthermore, the parties disagree on whether the 2005 Consent was for a masterplan and consequently whether it was "saved" as a deemed DCP. However, it was common ground that it was replaced by DCP 2012. Even if the 2005 Consent was a deemed DCP, it would have to have been included in s 6 of DCP 2012 if its requirements for built form, height and FSR were to remain a relevant consideration under s 79C(1)(a). The council has decided not to do this and on the contrary has increased the maximum height limit for the site to 22m and the adjoining land to the west up to 30m.
4. Consequently there is no statutory requirement that the current application must be consistent with the 2005 Consent.
5. The parties also held different opinions about whether the 2005 Consent and any approval of the current application could operate independently given that there would be inconsistencies, particularly the amount of FSR approved under both the 2005 Consent and the 2008 Consent. It is not necessary for me to adjudicate on this issue as both parties agree that the Court has discretion to impose a condition under s 80A(1)(b) that would amend these earlier consents to remove any inconsistency. If the application is to be approved on its merits, I find that it would be appropriate to amend the earlier consents as "it may be complicated, inept, inconvenient, inappropriate or conceptually unsound" not to do so. It serves no planning purpose to have different consents with different requirements operating for the same piece of land.
6. In exercising discretion to impose a condition under s 80A(1)(b), as with any condition, it is relevant to consider the tests in Newbury District Council v Secretary of State for the Environment [1981] AC 578, namely that a condition can only be imposed for a planning purpose, must reasonably and fairly relate to the development, and must not be so unreasonable that no reasonable authority could have imposed it.
7. As stated above, amending the earlier consent would serve a planning purpose by eliminating the inconsistencies that would otherwise exist if multiple consents applied to the site. The amendments reasonably and fairly relate to the development, and would not be unreasonable for the following reasons.
8. Firstly, the current application is an independent development application which must be considered under the relevant matters in s79C of the EPA Act, which include LEP 2012 (s79C(1)(a)(i)) and DCP 2012 (s79C(1)(a)(iii)). The previous consents and submissions of the objectors are relevant matters of public interest (s79C(1)(e)).
9. Secondly, the 2005 Consent and the 2008 Consent were approved under different planning controls which have been amended under LEP 2012 and DCP 2012. In particular, the height control in LEP 2012 is 22m whereas it was 12m under DCP 1997. The FSR control of 2:1 under LEP 2012 remains the same as that under DCP 1997, however, the definition of GFA has changed and consequently more GFA is now permitted. The application complies with these controls.
10. Thirdly, the experts have agreed that the proposal is an appropriate form of development for the site which does not result in unacceptable impacts. While the residents have raised concerns about matters such as privacy, overshadowing, height, bulk, traffic and parking, these are not supported by expert evidence.
11. Fourthly, the concerns of Ms Robinson in relation to consistency with the 2005 Consent principally relate to "double dipping" and that approval of the application should not result in greater FSR than that approved for the combined Advanx Stage 1 and Stage 3 land (2.25:1 calculated under DCP 1997 which is equivalent to 2.38:1 calculated under LEP 2012). The following Table, based on the 2005 Consent, the 2008 Consent, and the agreement of the experts in Ex 6, indicates that the FSR approved for the combined site under the 2005 Consent and the 2008 Consent (when calculated in accordance with LEP 2012) will not be exceeded by the FSR of the proposal. The experts agree the FSR for the combined site would be 2.32:1. It is unclear from the figures in Ex 6 the basis of the "actual" amount of GFA for Stage 1 of 21411sqm. However, as the experts have agreed, I accept that this figure and consequently the FSR of 2.32 are correct. D/2004/782 and D/2006/721 Actual and proposed Maximum GFA Permissible GFA and FSR definition DCP 1997 LEP 2012 LEP 2012 LEP 2012 (Equivalent) GFA FSR GFA FSR GFA FSR GFA FSR Stage 1 21411 17978 2:1 under cl 3.4 8989sqm site area 22040 2.45:1 23362 2.6:1 actual 2.4:1 1797.8 plus Up to 0.2:1 under cl 6.21(7) Stage 3 2496 1.3:1 2646 1.4:1 3837 2.0:1 3838 1916sqm site area proposed 383.8 Combined sites 24536 2.25:1 26008 2.38 25248 2.32:1 23991 2.2:1 10905sqm site area

1. For the above reasons, the proposal would not contravene the object of the EPA Act and I accept the evidence of the experts that on a consideration of its merits the proposal is acceptable. The development application can therefore be approved subject to conditions, which include a requirement under s 80A(1)(b) that the 2005 Consent and the 2008 Consent be modified. The parties have filed agreed conditions which incorporate the manner in which these consents are to be modified to ensure consistency.

Orders

1. The Orders of the Court are: 1. The appeal is upheld; 2. The development application (D/2014/1587) for demolition of the existing buildings and construction of a five level residential flat building over basement parking and associated landscaping at 18-28 Neild Avenue, Darlinghurst, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1 and C, may be returned. Annelise Tuor Commissioner of th Court 10414 of 2015 - Annexure A (224 KB, pdf)

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