Maxida International Alexandria Property Australia Pty Ltd v City of Sydney Council

Land and Environment Court (NSW)|2022-03-03

Judgment

COMMISSIONER: This appeal is brought by the applicant under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). It follows the deemed refusal by the consent authority of a modification application lodged under s 4.55(2) of the EPA Act. City of Sydney Council (Council) has a file reference number of D/2016/989/C for the modification application. The modification application seeks to modify an approved concept development application, pursuant to s 4.22 of the EPA Act, for seven mixed use buildings and associated development at 205-213 and 215-225 Euston Road, Alexandria (site). The approved concept development application has as its Council file reference D/2016/989/A (Council's Statement of Facts and Contentions filed 23 February 2022 Ex 2 p 1). Henceforth I will refer to D/2016/989/A as the "concept approval".
The consent authority in this instance is the Central Sydney Planning Committee, with City of Sydney Council (Council) the respondent in regard to the appeal proceedings. Under s 39(2) of the Land and Environment Court Act 1979 (LEC Act), the Court has power to exercise the consent authority function in disposing of this appeal.

Concept development applications

Section 4.22 of the EPA Act is concerned with concept development applications. In accordance with the related provisions, a concept development application sets out concept proposals for the development of a site. Consents to concept development applications do not of themselves authorise the carrying out of development. Detailed proposals for development of the particular site would be the subject of subsequent development applications. Under s 4.24(2) of the EPA Act, when a consent for a concept development application for a site is in force, subsequent determinations (in regard to development applications for detailed proposals) "cannot be inconsistent with the consent for the concept proposals for the development of the site".

Related detailed development applications also subject to appeal

Two development applications for development of the site have already been lodged with Council. Each will be subject to the provisions of s 4.24(2) of the EPA Act. That is to say, the determination of each of these detailed development applications cannot be inconsistent with the applicable concept approval.
Appeals have been lodged with respect to each of the two detailed development applications. The particulars are as follows:

Proceedings 2020/291179 - appealing the refusal of a development application for what is described as "early works" (early works DA). The early works DA seeks consent for demolition of existing structures on the site, site excavation and remediation. Council's file reference for the early works DA is D/2018/718.
Proceedings 2020/207341 - appealing the refusal of a DA for detailed design (detailed design DA). The detailed design DA seeks consent for the construction of eight mixed use buildings, comprising 389 residential apartments, office and retail uses, basement levels including for parking. Council's file reference for the detailed design DA is D/2018/907.

These two appeals are being heard together and involve the same applicant and respondent, and both are being heard by me. When I use the term "related appeals" in this judgement I am referring to the above two appeals (proceedings 2020/291179 and 2020/207341), as well as an earlier modification application appeal which I explain below (see [9]).

Interaction between experts

There has been a considerable amount of systematic exchange between the numerous experts, jointly involved in this appeal and the related appeals, in what seems to me to have been an effort to effect the requirements of s 4.22(2) of the EPA Act. That is to say, at least, there has been close iterative work on the integration of the detailed design DA, the early works DA and the modification application now before me. It is notable that the creators of the winning design competition scheme (see [21]) have been a party to this interaction.
Council puts it this way in its Statement of Facts and Contentions filed 23 February 2022 (Ex 2 p 4): "The (modification) application comprises all and only the modifications agreed to by the experts following joint conferencing of a previous modification application D/2016/989/B, which is the subject of an appeal to the Land and Environment Court ((File) No 2020/00207337)."

Earlier modification application appeal

Notable in the quote from Ex 1 immediately above, is the reference to a "previous" modification application (referenced as D/2016/989/B and Court File No 2020/207337). The modification application before me is described by Council as D/2016/989/C and has Court File No 2022/17116. The explanation for this relates to the findings of Pain J in Scarf v Shoalhaven City Council [2021] NSWLEC 128 ("Scarf"), which the parties agree establishes that there is no power available to amend D/2016/989/B due to certain details relating to the timing of the original determination of the application by the consent authority [1] . So while the "considerable" work I refer to above had the original intention to bring about an amendment to D/2016/989/B prior to its determination (to accord with various agreed positions established by relevant experts), the findings of Scarf made this not possible. It was decided by the applicant that a fresh application to modify the concept approval would be lodged with Council (D/2016/989/C), with this fresh application now before the Court in the circumstances indicated at [1].
There is no dispute among the parties that D/2016/989/C, as now before me, duplicates the previously intended "amendment" of D/2016/989/B. A statutory declaration to this effect has been made by P Fuller a lead project architect (Council bundle filed 1 March 2022 Ex 8 Tab 4)

Current appeal heard afresh

In accordance with the explanation above, it will be seen that there is no expert evidence presented by Council against the modification application before me here. Nonetheless, Appeal No 2022/17116 is a new matter and must be heard afresh. In the course of this occurring, and consistent with s 56 of the Civil Procedure Act 2005, it will be seen that certain evidence from the related appeal proceedings is called up into evidence in the matter before me here.

Site and setting

I rely on Ex 2 for much of the descriptive material below. The site is legally identified as Lots 110 and 111 in DP 883295. It has an area of some 21,029m² and is approximately rectangular in shape. The site sits on the western side of Euston Road and has a 178m frontage to it. The other three site boundaries all abut Sydney Park. The site is relatively flat and sits lower on its northern and western sides than the adjacent parklands.
The site currently contains two large warehouse buildings and is accessed by two driveways from Euston Road. The site has a history of past contaminating uses including a gasworks and metal manufacturing.
Sydney Park is a 40ha open space area which contains wetlands, green open spaces, trees and playgrounds. It is described in the Sydney Park Plan of Management as having "a diverse ecosystem, historical sites and extensive parklands" (Ex 2 par 8). Other nearby land uses are predominantly industrial.
Euston Road is being upgraded as part of the NSW government's 'WestConnex' project with three lanes of traffic in each direction. The WestConnex St Peters interchange is nearby. There are 70,000 vehicles a day forecast to use this road once WestConnex is fully operational.
Across Euston Road is the Alexandra Canal locality within an area designated by Council as the "Southern Employment Lands", and identified for its growing strategic role to support Sydney Airport-related activities and more generally. Existing nearby industrial premises, mostly on the eastern side of Euston Road, include three concrete batching plants operating 24 hours per day, along with manufacturing and distribution centres. See air photo at Figure 1. Figure 1 - Surrounding context 2020 aerial photo - site outlined in red (Source: Exhibit 1 p 7)

Current concept approval

The current concept approval involves a set of architectural drawings establishing building envelopes, along with a series of detailed conditions which establish various parameters for future development of the site, including in regard to: detailed building design, building height, floor space ratio (FSR), land use, ecologically sustainable development (ESD) outcomes, a public arts strategy, a signage strategy, flooding, acid sulfate soils, staging, construction stage planning, air quality, access and further planning procedures, including in relation to a "competitive design process". Various matters are listed as "matters not approved at Stage 1" (Condition 6).
The current concept approval provides for three buildings along the Euston Road frontage (Buildings A, B and C in a line from south to north, referenced together forthwith as the "Euston Road Buildings") and five buildings, in a sense, angling off and very roughly perpendicular to Euston Road (Buildings D, E, F, G and H north to south and roughly parallel to one another, referenced forthwith as the "Parkside Buildings").
Under Condition 7, a maximum height of 26m AHD was applicable for the identified highest parts of the buildings. That is, for what were explicitly identified as six storey components of the buildings. The concept approval provides for a stepping down of Buildings D, E, F, G and H to the west as they hear the boundary with Sydney Park. An identified four story components would have a maximum height of 20.3m AHD.
Condition 8 confirmed that the FSR controls under cl 4.4 of Sydney Local Environmental Plan 2012 (SLEP) did apply.

Design excellence and competitive design process

Condition 5 of the concept approval requires that a competitive design process be undertaken in accordance with the provisions of SLEP, and that the "detailed design of the development must exhibit design excellence in accordance with Clause 6.21 of Sydney Local Environmental Plan 2012". Clause 6.21C of SLEP provides that consent not be granted unless, in the opinion of the consent authority, the proposed development exhibits design excellence. A set of matters a consent authority must have regard to in considering this question are listed at cl 6.21C(2). An important factor is that, under Condition 6, a 10% "design excellence uplift" in FSR or building height was available.

Proposed modifications

In principle, the proposed modification to the concept approval seeks to move ahead to a higher level of detail in relation to many of the parameters identified in the current concept approval. I understand a key aspect to be that this higher level of resolution of various matters of detail, also brings to bear more certainty or a more complete answer in regard to future building envelope (and development outcome) particulars.
An ambition on the part of the applicant, as I understand it, is to secure an appropriate level of alignment between the concept approval and detailed architectural and other plans associated with the future physical development of the site. That is, to be in a position where detailed development applications are consistent with the applicable concept approval.
An ambition on the part of Council is that any amended concept approval also stands alone. That is to say, the Council is aware of the possibility that the detailed architectural and other plans (which have prepared in an iterative manner with the development of the modifications to the concept approval and essentially are embodied in D/2018/907 and D/2018/718 and the related appeals) may not eventuate. That is to say, that any modified concept approval must be available for others to interpret and potentially activate.
In the thick of these ambitions are the design excellence requirements embodied in the existing concept approval. A competitive design process, required of Condition 5 of the concept approval, has been undertaken (Ex E provides the Competitive Design Alternatives Report). The winning design was prepared by Silvester Fuller MHNDU and Sue Barnsley Design. Silvester Fuller MHNDU has prepared the architectural drawings for the modification application and Sue Barnsley Design has prepared the landscape scheme for the modification application. That is to say, the winning design architects and landscape architects have been a party to the finalisation of the modification application.
The proposed modifications to the concept approval involve certain changes to the concept approval conditions, including in regard to the building envelope plans. The building envelope plans as proposed to be modified were tendered as Ex C. The proposed modification to conditions was addressed in the statement of environmental effects prepared on behalf of the applicant (Ex D). The particulars are represented in a quote from Ex 1 (par 1): "a) Re-configuration of the proposed building envelopes to be consistent with the building envelopes and built form changes made to the Detailed Design (Rev J) for the development application D/2018/907 as part of an appeal to the Land and Environment Court (Case no. 2020/207341), including: a. The primary facade of Buildings A and B be set back 5.5m-5.6m from the eastern site boundary; and their veil facade be set back 3m from that boundary. b. The primary facade of Building C be set back 4.7m-4.8m from the eastern site boundary; and their veil facade be set back 3m from that boundary. c. Buildings C and D relocated west by 2.6m, increasing the building setback to the re-aligned eastern property boundary to 6.1m. d. Provide a 18m separate between the habitable rooms of Buildings D and E. e. Basement walls relocated to be wholly within the updated Euston Road setback. f. Awnings to Buildings C and D updated to suit the new building alignments. g. Gross floor area (GFA) within Buildings C and D updated to reflect amended footprint and planning. b) Additional landscape zone included within the increased setback zone behind deceleration lane. c) Designation of deep soil zones between finger buildings, including 10x10m minimum dimensions in four locations. d) Addition of 3m wide unencumbered deep soil zone along Euston Road e) Boundary fence has been added to the northern, western and southern boundaries. f) Driveway widths, gradients and kerb radius have been revised. g) A flood deflector wall has been added at the northern boundary at the NE corner of the site RL 5.6. h) Total GFA achieved amended to 42,391sqm. i) Floor space ratio (FSR) amended to 2.03:1 measured after deceleration lane dedication or 2.02:1 measured before land dedication. j) Design amendments have been made to the Euston Road facade of Buildings A, B, C and D: a. Increase the size of ventilation chimneys to include 600mm internal clear opening; b. Acoustic insultation added to ventilation chimneys; c. Arrangement of ventilation chimneys adapted to suit the new alignment of Building C facade; d. Location of landscaped veil extended towards eastern boundary to increase the access width between 800mm-2.45m for Buildings A and B, and between 600mm-1.65m for Building C. k) Design amendments have been made to rooftops of Buildings A, B, C and D: a. Lift access added to the rooftop of Building A b. Height of the cooling tower vent wall increased to RL 29.850 c. Pedestrian walkway pathway has been made continuous across the four buildings; d. Accessible area and seating on Building B rooftop has increased; e. A 1m soil depth area on Building A Level 6 roof has been increased. l) Design amendments have been made to rooftops of Buildings E, F, G and H to further detail rooftop solar panels. m) Revised roof strategy and plan shows 63% landscaping, 27% energy generation, plant and other services, and 10% communal open space. n) All building envelopes now include a building/façade articulation zone that accurately traces in detail as a "shrink wrap", all aspects of building articulation shown in the Stage 2 Detailed Design (Rev J). o) Addition of Boundary Realignment drawing DA A9111 to the approved Concept Consent Plans (186sqm land dedication). p) Modification to conditions of consent to reflect design development and the detailed design, and deletion of conditions no longer applicable to the development."
A factor that does not fall out readily from the above quote is that the modification application would allow taller buildings than the current concept approval. The first point to note here is that the modification application seeks to call up the 10% design excellence uplift referenced above. The proposal's qualification for this uplift is considered further below, but suffice to say here that each of the design and planning experts are satisfied that it does qualify (see [32]).
Building height exceedance beyond the 10% design quality uplift is proposed. The explanation for this, in part, is that the concept approval had been incomplete in its attention to flooding. There has been an increase in height to the flood planning level applicable to the site. The flood planning level has been raised from 4.3m to 5.4m. This increase, of 1.1m, is seeking to ensure protection from the Probably Maximum Flood (Addendum Statement of Environmental Effects Ex R3 p 11). For the Euston Road Buildings there has also been the addition of a height for a "transfer slab" between the retail and residential uses in these buildings, with the intention of facilitating the mix of retail and residential uses along Euston Road. There are also some (limited) rooftop elements including landscape mounded lift overruns, other landscape elements, and specified mechanical ventilation. These would be controlled by detailed conditions of consent on the intended modified concept approval (proposed modification to existing concept approval conditions are contained in Annexure A, in regard to this matter refer to Condition 6).
It should also be understood that with this modification, the concept approval would readily comply with the applicable FSR controls under cl 4.4 of SLEP. The control is 2.5:1 and the detailed plans behind the concept approval indicate an FSR of 2.07:1.

Statutory assessment factors and evaluation

Sections 4.55(2) and (3) of the EPA Act establish pre-requisites to the exercise of the power available to modify a consent, including a consent to a concept application (s 4.24(3) of the EPA Act). The relevant provisions are as follows: (2) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. .... (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
Below each of the prerequisites are considered.

Expert evidence

The experts providing oral evidence in these proceedings are indicated below. Expert Expertise Engaged by Ms C Swan Town planning Applicant Ms S Robinson Town planning Respondent Mr N Dickson Urban design Applicant Ms J Pressick Urban design Respondent

I further note that essentially all of the expert evidence either tendered or admitted as oral evidence in the related proceedings (ie appeal reference numbers 2020/207337, 2020/207341 and 2020/291179, see [5] and [9]) was also tendered into evidence in these proceedings. The oral evidence was tendered by way of transcripts. For reference purposes I note that the transcript from the related hearing on 20 October 2021 was tendered as Ex F and the transcript from the related hearing on 21 October 2021 was tendered as Ex G. Additional experts provided this evidence by way of transcript, or through written evidence, included the following. Expert Expertise Engaged by S Barnsley Landscape Applicant K Yates Landscape Respondent R Lamb Visual Applicant D Dhaciou Flooding Applicant V Russo Stormwater Applicant L Collier Flooding and stormwater Respondent O Gaussen Acoustics Applicant R Tonin Acoustics Respondent A Morse Traffic Applicant S Briant Traffic Respondent Mr P Castor Arboriculture Applicant Ms G Walsh Arboriculture Respondent M Burke Natural ventilation Applicant T Rofail Natural ventilation Respondent

Substantially the same development

Tendered into evidence as Ex D in these proceedings was the written submission to Council accompanying the subject modification application (D/2016/989/C). The submission was prepared by Ms Swan, the applicant's town planning expert. Ex D provides commentary in regard to the "substantially the same development" question. A series of points are highlighted at follows (Ex D p 16): " The modified development retains the same activity and proposed land uses as the approved development.  Continues to relate to the concept development for eight mixed use buildings on the site.  The refined building envelopes do not fundamentally alter the site planning and building layout of the development and are the result of the competitive design process and L&E proceedings held for the site.  The proposed building height represents a variation to the height of the approved building envelope, due to the increase in flood planning levels and transfer slab for the change of use in the Euston Road Buildings. The variation of height also captures the architectural features in the articulation zone. The buildings continue to present as 5-6 storey buildings.  The proposed modifications to the development result in substantially the same or improved impacts compared with those assessed and mitigated in the original assessment of D/2016/989 …"
Ex D then provides a table comparing the proposed modification with the original concept approval in relation to such matters as land use, number of buildings, traffic implications, building height, visual impact, open space and landscape, deep soil areas, noise and amenity impacts. Graphical representations of the differences between the two proposal are also provided.
The comparative task I need to undertake here is understood from Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 ("Moto Projects") at [54]. For the modification power to become available, it requires a finding of fact, by me, that the development as modified is substantially the same development as the development for which consent was originally granted. Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 ("Agricultural Equity") is also on point, where Pepper J at [173], helpfully outlined legal principles governing the exercise of the power contained in s 4.55(2) (which provides the exact same provisions as s 96(2) of the then EPA Act which was the direct point of attention in Agricultural Equity).
Mindful of the beneficial and facultative nature of the provision (Agricultural Equity at [173(2)]), I accept the quantitative and qualitative comparisons undertaken by Ms Swan as presented in Ex E, and not disputed by Council's experts. It is clear to me that the changes, which would still constitute a mixed use development with the same number of buildings, comprise an evolution of the development conception as the various issues involved in relating concept to detailed development have been resolved. In that sense the modifications are evolutionary rather than comprising a radical transformation (Agricultural Equity at [173(7)]), and reasonably fit the requirement of "essentially or materially having the same essence" (Agricultural Equity at [173(5)]). I conclude that the development to which the consent as modified by the current application relates would be substantially the same development as the development for which the consent was originally granted.

Consultation

Council advised me that consultation and notification has occurred in accordance with the requirements of ss 4.55(2)(b) and (c) of the EPA Act. I accept this advice.
Council tendered the submissions from Transport for NSW and WaterNSW in response to the Council's approach (Ex 8 Tab 7 and 8). Transport for NSW sought the imposition of a set of conditions which have been included in Annexure A to this judgement.
Objecting submissions made in relation to s 4.55(2)(c) have been brought to my attention, and are considered immediately below. I will note here Council's advice that it approached those submitting objecting submissions to see if they wished to make oral submissions to the hearing, and the objecting parties indicated they did not wish to speak.

Objecting submissions and issues arising

The objecting submissions received during the consultation period raised the following concerns: 1. The site should be incorporated into Sydney Park. Council should buy back the land from the developers and incorporate it into the park. 2. The proposal is incompatible with Sydney Park due to its location, size and scope. It would create additional overshadowing and dominate the park, which is a highly important area and rare place for relaxation for the people living in the area. 3. None of the proposed apartments should have direct access to Sydney Park. The park must remain a public space and should not be the proposed development's "back garden".
I note here that there have been a number of exercises in public consultation in relation to the site development. In Ex 5 Council provided copies of earlier submissions. Having regard to the public interest, and mindful of what is sometimes called "objector fatigue", I have also given consideration to the earlier objecting submissions. The public objections to the modification application which I consider here can be summarised as follows: 1. Community planning and infrastructure - public acquisition of the site for incorporation into Sydney Park and associated strategic open space and community services and facilities provisioning concerns. 2. Impacts upon amenity enjoyed by patrons of Sydney Park, including: building height, visual impact, overshadowing, light spill, direct access into the site. 3. Impacts on Sydney Park's natural ecosystems both at the immediate boundary and more generally. 4. Other impacts, including particularly in relation to existing nearby industrial operations. 5. Design excellence considerations and related matters.

Community planning and infrastructure including acquisition of land for Sydney Park inclusion

A common theme in the public objections I am considering was that the site should not be developed for housing purposes but should instead be added to Sydney Park. The site was required as part of a "green lung" in the face of the intensity of development and traffic volumes now and anticipated into the future (mindful of WestConnex) and the like. There was also a concern with the availability of the various community facilities and human services the additional population, moving into the anticipated development, would require.
I am not persuaded by these submissions. No proposals for the acquisition of the site for open space purposes have been put before the Court. The site has been part of a planning process, relating to its conversion from industrial to a mixed use residential scheme, for a number of years. Conversion of sites of this kind to assist in addressing Sydney's housing accommodation requirements are part of the greater metropolitan area planning process. This process includes considerations relating to community facilities and human services requirements.

Incompatibility with, and impacts upon, Sydney Park and the enjoyment of users

A concern here is that experiences in Sydney Park will be adversely affected by the proposed new buildings sky-lining above existing vegetation when viewing (the south-west quadrant generally) from a number of areas within the park, including some well used pathways. The eventual building massing would be an eyesore affecting the enjoyment of the park. A key issue here is the height of the proposed buildings. There is also a concern that some existing trees, which bring about some screening at present, would be at risk as a consequence of the proposed development.
The proposed modifications would retain certain relevant aspects of the existing concept approval and bring forward a number of further points of detail which, according to the design and planning experts, effectively mitigate any visual intrusion into the park (Joint Report of the Town Planning and Urban Design Experts, filed in proceedings 2020/207337 on 23 September 2021, Ex 6 par 15).
The requirement for a 6m building setback to the Sydney Park boundary is essentially retained (it had not been in earlier iterations of the proposed modifications). Ms Pressick's evidence is that the envelope itself including the limited exceptions which do reach into the 6m setback are "extremely tightly defined" with setbacks that "enabled the trees in the park to be protected" (Ex F p 58). Importantly, in regard to setbacks (Ex 6 par 15): "Council's arborist is satisfied that the existing trees in Sydney Park are able to be protected. Council's landscape architect, urban designer and planner are satisfied that adequate space is available in the setback areas to accommodate a vegetated interface to Sydney Park."
The modification application would also provide an additional layer of detailing to how rooftop landscaping will be delivered including in regard to maintenance. The experts agree that the new wording of Condition (4)(b) would "provide a high degree of certainty in relation to the provision of appropriate soil depths, planting and uses on the roof". (Joint Report Landscape Experts filed 22 September 2021, Ex 13 p 6 and 7).
With the proposed building setbacks from Sydney Park (and consequent expected retention of all the nearby trees within the park), substantial areas of the rooftop of all buildings accommodating agreed rooftop planting and the potentially jarring effect of proposed lift overruns also mitigated through encircling by landscaped mounds; I accept the advice of the planning and design experts that the building height as proposed is satisfactory and the proposal would provide a satisfactory visual relationship with Sydney Park.
In regard to overshadowing, Ms Pressick and Ms Swan advised that while overshadowing would fall mainly on the road reservation, the concept approval already provides for some overshadowing of the park. The modification application would only change things in a minor way. However there would be some overall increase, principally associated with the increased building height allowance related to the flood level increase. The experts were satisfied that the proposal did not significantly affect the existing concept approval in this regard or unreasonably overshadow Sydney Park (expert commentary is at Ex F p 63).
In regard to light spill, Mr Dickson took me to plans showing the key pedestrian cycling pathways and demonstrated through aerial photographs that there was, for the most part, large areas of vegetation between these more well used areas of Sydney Park and the proposed buildings. In his opinion, light spill would be "very low when experienced from those pathways" (Ex F p 66). It was also noted that there is already lighting in some areas of the park, in part at least to provide for safe use of the park in evenings.
Overall, I accept the evidence of the experts that the proposed modification to the concept application provides for a development that would be compatible with the park and would not bring about an unreasonable adverse effect on the enjoyment of the park, as experienced by users. I am factoring the proposed modification to the building height in coming to these conclusions. I further note that the modification application as now proposed would fence the site off from Sydney Park, a change from previous iterations. That is to say there would be no direct access into the park from the site, addressing objector concerns on that front.

Impacts on Sydney Park's natural ecosystem

There were two main objecting concerns here. The first was in regard to the risk of loss of trees within the park (and their associated ecosystems) due to the proximity of building works (and excavation) to the boundary. This objection was in part responding to an earlier iteration of plans which provided buildings considerably closer to the common boundary. Council's arborist is now satisfied that impact on existing trees in Sydney Park would be minor and are acceptable (Joint Report of the Arboricultural Experts filed 24 September 2021, Ex 14 p 5).
The second concern was in regard to the effect on wildlife who currently inhabit or use the park. A particular concern was raised in regard to the Superb Fairy Wren, a protected native species, according to submissions. On this matter, I accept the findings of the Ecological Overview prepared by Ecological Consultants Australia Pty Ltd and TA Kingfisher Urban Ecology and Wetlands and filed 15 July 2020 (Ex Z2) and the supplementary letter dated 22 May 2021 (Ex A3) that the conversion of the existing industrial sites to the proposed mixed use development would bring considerable positive outcomes in ecological terms. Proposed ground landscaping and landscaped roof areas would provide additional habitat for locally native species, away from usual ground predators in regard to roofed areas.
Overall I am satisfied that there would be no unreasonable ecological impacts mindful of the findings of arborists in regard to tree retention and the comment in Ex Z2 that the majority of the park's fauna can be considered as "urban specialist species" used to living at the edge of urban environments (Ex Z2 p 52).

Other impacts

There were also objections raised in regard to the proposal's interface with Euston Road, in particular that due to the required deceleration lane (for vehicle entry into the site) there would be insufficient area for both a walkway and landscaping. The modification application now provides for a boundary adjustment adjoining the deceleration lane to achieve a public domain width of 6.1m for footpath, landscaping and verge, accommodating deep soil for canopy trees (Ex 6 p 8). There was also a good degree of confidence on the part of the design experts that there can be effective street activation along Euston Road in the site environs, noting the services which would be located particularly at the northern end of the site (Ex F p 60). The proposal, as conditioned (including conditions imposed by TfNSW), provides for satisfactory traffic management according to the expert advice.
There were also noise-related concerns raised in objecting submissions. There were two aspects to them. First was the concern that residential development adjacent to Euston Road (with expected increasing traffic flows as a link road to WestConnex) was inappropriate. Second was the concern that residential development would bring a threat to the ongoing operation of nearby industrial uses (significant noise generators) which currently have consent to operate 24 hours a day. Both of these aspects relate to the occupation of buildings for residential accommodation. The concept approval does not approve the use of the development for residential purposes. Condition 5 (Annexure A) makes clear that residential use is not permitted until it is confirmed that suitable design resolution has been achieved in relation to noise concerns. This is a matter to be addressed with the detailed design DA. In regard to the matter before me, I note that the modification application provides certain particulars in regard to ventilation chimneys, which according to the experts form part of the package of requirements associated with the resolution of related issues to do with acoustic and ventilation requirements.

Design excellence

Objections also disputed whether design excellence will be achieved with the modification application as proposed. I will have more to say on the design excellence when considering the statutory framework.

Criteria at section 4.55(3) of the EPA Act

Section 4.55(3) of the EPA Act requires a consent authority to "take into consideration" relevant matters included in s 4.15(1) of the EPA Act.

Environmental planning instruments

Section 4.15(1)(a)(i) requires consideration of environmental planning instruments. The parties (via their planning experts) have provided advice to assist me in understanding which environmental planning instruments apply to this modification application (advice filed 7 March 2022). It is clear that as this modification application to the concept approval is not, of itself, a development application (see s 4.55(4) of the EPA Act), a number of State Environmental Planning Policies do not apply here. Aided by this advice, I am aware however that:

Condition 26 (in Annexure B to this judgement, which would provide the consolidated modified conditions of consent to the concept approval as agreed) establishes certain requirements in regard to site remediation relating to State Environmental Planning Policy (Resilience and Hazards) 2021).
Condition 10(a) calls up the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development and the Apartment Design Guide.
Conditions 6(a) and 22 relate the concept approval to the development stage requirements of State Environmental Planning Policy (Transport and Infrastructure) 2021.
Condition 10(d) calls up the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

I have already referenced liaison with Transport for NSW and WaterNSW which related in part to the requirements of s 138 of the Roads Act 1993 and s 90(2) of the Water Management Act 2000. Generally in regard to these two Acts, more detailed consideration is required in relation to the early works DA and detailed design DA.
As I turn to SLEP, I note that the parties, but more particularly the applicant, took me to the findings in North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 ("Michael Standley") (at 481C), where a distinction is explained as to the attention which should be given to environmental planning instruments, when evaluating modification applications. That is, compared to development application evaluation (Michael Standley at 481C): "Section 102 [now s 4.55] is a free-standing provision. A modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application. And s 102(3A) [now s 4.55(3)] controls the way in which the consent authority takes into account the development standards found in any environmental planning instrument."
Behind this are the provisions at s 4.2(1)(b) of the EPA Act which provide, relevantly, that development may not be carried out unless it is in accordance with the development consent and the applicable environmental planning instrument. The findings of the Court of Appeal in Michael Standley, that (now) s 4.55 is a free-standing provision, releases modification applications from statutory restrictions that apply under s 4.2(1)(b), and relevant here SLEP (explained much more clearly in Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157 [8]-[9]). As made clear in Michael Standley (at 481C), this does not mean the provisions of relevant environmental planning instruments are to be ignored, only that they do not by their construction provide a statutory bar.
Firstly I note that the site is zoned B4 Mixed Use under SLEP. I have given consideration to the zone objectives. Clause 4.3 relates to height of buildings. I have given consideration to this topic when considering the compatibility of the proposal with Sydney Park and am satisfied in regard to it, despite the exceedance of SLEP's development standard relating to building height. Clause 4.4 is concerned with FSR. There is already comfortable compliance with the relevant standard.
Division 4 of SLEP is concerned with design excellence. Clause 6.21B establishes when the provisions apply. Clause 6.21C is the operational provision. Clause 6.21C(1) provides that: Development consent must not be granted to development to which this Division applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.
Clause 6.21C(2) then provides a list of matters to which a consent authority must have regard to when determining its opinion as to whether a proposed development exhibits design excellence.
While cl 6.21(1) does not in this instance in any sense provide for a statutory bar, I wished to draw attention to the fact that the planning and urban design experts did give attention to the question of design excellence in this matter before me. The agreed position was that the modification application, and what would be the modified concept approval, does exhibit design excellence in the terms of cl 6.21 of SLEP (Ex 6 p 11). In oral evidence, the experts explained that while the particulars of this exhibition of design excellence were more readily apparent in the detailed development DA, there had been a large effort on the part of the many individuals involved in the resolution of the various issues and inter-relationships arising in the finalisation of the scheme. While an earlier iteration of the modification application had been deficient, the scheme now embodied: (1) building setbacks, designation of deep soil areas, and ground and building landscaping which would ensure a good relationship with the public domain areas in Sydney Park and Euston Road including no unreasonable view loss from public vantage points, (2) a more complete response to flooding risk, (3) resolution of acoustic and at the same time airflow requirements expected of SEPP 65, (4) effective visual privacy provisions including in between the proposed buildings and (5) achievement of BASIX requirements in regard to ecological sustainable development.
It is my belief that the proposal before me involved a complex design resolution exercise for many of the specialists involved, as they related to one another, across disciplines, to achieve points of resolution consistent with the ambitions of the pre-existing concept approval. I am convinced, on the basis of the expert evidence before me, that this modification application is something which embodies design excellence.

Sydney Development Control Plan 2012

I am aware that under s 4.23(2) of the EPA Act concept applications are at times prepared as an alternative to development control plan. Nonetheless, I have given consideration to Sydney Development Control Plan 2012 (SDCP) but note that in a sense the process involved in the modified concept scheme development, including in particular the design excellence process, has been working at a more site specific level than SDCP. This has meant that less attention is warranted to each of the detailed provisions of SDCP. I do note that Condition 10 of the concept approval calls up the provisions of SDCP for the detailed design DA.

Other evaluation matters

There are other matters listed in s 4.15(1) of the EPA Act which I have given consideration to which do not warrant further attention in this judgement. I do note however s 4.15(1)(d), which is concerned with submissions made in regard to the application. But I only wish to note that I have addressed this topic earlier see [38]-[58].

Reasons given for the grant of the consent that is sought to be modified

The final matter for consideration under s 4.55(3) is the reasons given by the consent authority for the grant of the consent that is sought to be modified. While there are no explicit reasons available to me, the parties provided me with a copy of the assessment report for the original concept approval (Report to Central Sydney Planning Committee 22 June 2017), which I have considered. The concept approval determination notice also indicates (p 1) that the reason for the imposition of conditions is that "(unrestricted) consent may affect the environmental amenity of the area and would not be in the public interest". The requirements of s 4.55(3) are satisfied

Conclusion

In accordance with the above findings, the modification application to the concept approval warrants approval in accordance with agreed conditions.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Modification application No. D/2016/989/C is approved and D/2016/989/A is modified in the terms in Annexure A. 3. As a consequence of Order (2) above, Development Consent D/2016/989 is now subject to the consolidated modified conditions of development consent set out in Annexure B. 4. All exhibits are retained except for exhibits 8 and H.

Commissioner of the Court Annexure A (238061, pdf) Annexure B (311799, pdf)

Endnote

Clause 121B of the Environmental Planning and Assessment Regulation 2000 was effected as a legislative amendment to allow the amendment of modification applications after the findings of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 247 LGERA 318; [2021] NSWCA 112. However according to Scarf and in short, this power does not apply to modification applications lodged and determined prior to 14 July 2021. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2022

(1999) 106 LGERA 298

(2021) 247 LGERA 318

At a glance

Court

Decision date

Source

Judgment (30 paragraphs)

Parties

Cases Cited (8)

Cited By (1)