Meriton Property Services Pty Limited v Minister for Planning and Infrastructure

Judgment 1SENIOR COMMISSIONER: Part 3A was introduced to the Environmental Planning and Assessment Act 1979 (the Act) to give a discretion to the Minister for Planning (or the holder of that office from time to time) to override local controls and to apply differing tests for the purposes of assessing and proving major projects of various types provided in the Part. 2Although the local controls were overridden by Part 3A, the Minister is given a discretion to consider local planning controls in an environmental planning instrument, that being a term of art under the Act, if the Minister considered it appropriate to do so. 3Although Part 3A is now repealed, certainly ongoing rights were preserved after the repeal to protect the ongoing operation, in a planning sense, of projects that might have been approved or those projects that still had not yet been approved. In this case, relevantly the provisions of s 75W of the Act permitting modification of an approved project have been maintained. 4We have structured this decision in a fashion that has me delivering that portion of the decision that relates to jurisdictional issues raised by the intervener together with the broad planning issues that have been involved. My colleague, Pearson C will deal with the details of the objections; matters arising from them and matters of detail concerning the conditions of development consent as we have concluded that the modification should be approved subject to some changes. 5The structure of Part 3A is set out in s 75B(1) which sets out the nature of the possible developments that can be covered by approvals under the Part. In the present circumstances, the approval for the project at Chatswood that is the subject of this appeal was a result of the classification of the project as a major project under Part 3A because the proposal was for a development that was a residential/commercial/retail project with a capital investment value more than $50 million and having the importance of achieving stable regional planning objectives-they being triggers that permitted Part 3A to be invoked as a consequence of cl 13 of sch 1 of State Environmental Planning Policy Major Projects 2005 in force at the time of the making of the application. 6The Minister gives approval pursuant to s 75J of the Act and only does so after considering the Director-General's report on the project and advice and recommendations contained in those reports and any findings or recommendations of the Planning Assessment Commission following a review of the project. 7In this instance, for the modification application, the Minister made a delegation to the Planning Assessment Commission to permit the Planning Assessment Commission to determine the modification application. The Planning Assessment Commission originally rejected the proposed modification that is the subject of this appeal but as I will turn to shortly, following discussions between the parties pursuant to the s 34 conciliation process in the Court, the Minister no longer adheres to the Planning Assessment Commission's rejection of the proposal and now supports a revised version of the modification proposal. 8Section 75A of Part 3A contains definitions, the relevant one of which for the purposes of these proceedings is that of an approved project which is defined to mean a project, to the extent that it is approved by the Minister under this part, relevantly given that this is not a concept plan. The power given to the Minister to modify the proposal arises under s 75W and modification of approval is defined in that section as meaning changing the terms of a Minister's approval including revoking or varying a condition of the approval or imposing an additional condition of the approval and changing the terms of any determination made by the Minister under div 3 in connection with the approval. 9Section 75W sets out the process by which modification is initiated and considered: 75W Modification of Minister's approval (1) In this section: Minister's approval means an approval to carry out a project under this Part, and includes an approval of a concept plan. modification of approval means changing the terms of a Minister's approval, including: (a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and (b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval. (2) The proponent may request the Minister to modify the Minister's approval for a project. The Minister's approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part. (3) The request for the Minister's approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister. (4) The Minister may modify the approval (with or without conditions) or disapprove of the modification. (5) The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal. (6) Subsection (5) does not apply to a request to modify: (a) an approval granted by or as directed by the Court on appeal, or (b) a determination made by the Minister under Division 3 in connection with the approval of a concept plan. (7) This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan. 10Section 75W(2) permits a proponent to request the Minister to modify the Minister's approval for a project. Section 75W(3) requires that the request be lodged with the Director-General and the Director-General may then notify the proponent of any environmental assessment requirements with respect to the proposed modification before the Minister will consider the modification. Then, at the conclusion of consideration of the matters to which I have already referred, the Minister may determine to modify the approval with or without conditions or disapprove of the modification. 11In these proceedings, the intervener (to whose submissions we will return) made something of the fact that the Director-General did not notify the proponent of environmental assessment requirements. We are of the view that that is a matter that might best be regarded as a red herring-as there are a number of reasons why the Director-General might not notify any environmental assessment requirements. We are not required to choose between those options-those being that the amendments were so insignificant that they did not require such requirements to be provided or, equally validly in our view, in an abstract sense, that the information provided by the proponent was so comprehensively satisfactory in addressing any possible matters that might need to be considered by the Director-General that there was no need to formalise any requirement for further material to be provided. 12The particular project that we are dealing here is something that was given approval by the then Minister for Planning on 28 September 2010. Project Application MP09_0066 was for a commercial and residential development of the Thomas Street carpark site at Chatswood. It comprised two buildings, one on the northern portion of the site comprising a three storey retail/commercial podium and a 26 story residential tower above and the second, on the southern portion of the site, comprising a three storey retail/commercial podium and an 18 storey commercial tower above. A five level basement carpark containing 506 carparking spaces-including dedicated to Willoughby Council 250 public carparking spaces to compensate for the removal of the public carparking that had previously been provided in the Thomas Street carpark was incorporated. 13There was to be provided public accessible open space and a through site pedestrian link and a vehicular right of way between Thomas Street and Fleet Lane (Fleet Lane having been closed at its western end and portion of it incorporated in the carpark site when it was sold to the proponent.) 14The appeal against the refusal of the Minister's delegate, the Planning Assessment Commission, was subject to an application for expedited hearing before the Court and there is no reason in this decision to canvass the reasons for the granting of such expedition. However, concurrently with the preparation for the hearing that we have undertaken, a s 34 conciliation process was undertaken by O'Neill C on 22, 26 and 28 November. On that final date, our colleague terminated the conciliation conference but noted that it was likely that there would be consent orders arising. The reason for that was that the Minister wished to notify objectors of the scope of the proposed consent orders and provide them with an opportunity to be heard further concerning them. 15We note, in passing, that, for the purposes of these proceedings, the parties have provided us with the necessary waiver pursuant to s 34(12) of the Land and Environment Court Act 1979 to be aware of (as necessary) matters that transpired during the course of the conciliation conference. 16The expedited hearing was set down for three days commencing on 11 December. Prior to that, an application for joinder by Iglu No 202 Pty Ltd (Iglu) had been made, that company being the proprietor of a building that is under construction adjacent to the south-eastern corner of the site that is the subject of these proceedings. On 29 November, orders were made granting limited participation pursuant to s 38(2) of the Land and Environment Court Act in the following terms: Iglu No 202 Pty Ltd be granted leave under s 38(2) of the Land and Environment Court Act to be separately represented as if it were a party and to cross-examine witnesses and make submissions in connection with the question identified in para 11 of pt A of the respondent's facts and contentions, namely whether the application is properly characterised as an application for modification of approval within the meaning of s 75W of the Environmental Planning and Assessment Act. 17Paragraph 11 of the Minister's Statement of Facts and Contentions reads as follows: The present application is being dealt with as an application for modification pursuant to s 75W of the EPA Act. It is incumbent on the Court as the decision maker to satisfy itself that the mod 6 application is properly so characterised an application for modification with the meaning of s 75W. See Barrick Australia Ltd v Williams (2009) 75 NSWLR 733 at 748, para 38. This involves an evaluative judgment as to whether the application is a request to modify the current approval in the sense of changing the terms of that approval. 18The present application, that is proposed Modification 6, arises after a number of modifications have already been approved by the Minister (without the controversy of court proceedings) on a number of occasions in the past. On 6 December 2013, as a consequence of the outcomes of the conciliation conference, the applicant was granted leave to rely on amended plans and those amended plans are the subject of these proceedings and are now known as revised Modification 6. 19The result of that is that revised Modification 6 effects a range of changes of varying types to the description of the project contained in Modification 3. The now proposed consent orders were not embodied in a s 34 agreement in order to permit further opportunity to the objectors provide the basis for these consent order proceedings. My colleague will deal with the questions raised by the objectors later. 20Pursuant to the leave granted to Iglu, Mr Lazarus of counsel made a number of submissions to us concerning the bases of why, in conformity with matters contained in para 11 of the Minister's Statement of Facts and Contentions, we should not regard ourselves as having jurisdiction to deal with the matter as a modification application. 21The Court of Appeal discussed the scope of modification applications under s 75W on an appeal by Barrick Australia v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733 against a decision of Biscoe J in Class 4 proceedings. The lead judgment in Barrick was written by his Honour Basten JA with whom McColl JA agreed. A third judgment, by Sackville AJA was provided that differs in some respects from that of the agreed majority position. 22The task that arises for us from Barrick is not dealing with a question of jurisdictional fact but of satisfying ourselves that the proposed modification application falls within the scope of s 75W, (see para 38 of Basten JA's decision). This is to be distinguished from the task more conventionally faced by Commissioners of the Court arising out of s 96(1A)(b) of the Act where we are regularly required to determine whether: The development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified if at all. 23What we are undertaking is an entirely different process from that followed in the line of authority dealing with that s 96 proposition that commenced with the decision of Stein J in Vacik Pty Limited v Penrith City Council (Stein J, unreported February 1992) through the decision of the Court of Appeal in North Sydney Council v Michael Standley and Associates Pty Limited (1998) 97 LGERA 433 and more recently by Bignold J in Moto Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298. 24Following para 38 in Basten JA's decision in Barrick, his Honour set out four matters that are ones to which we should turn our attention. The third of those matters is that which is raised by Mr Lazarus and comes from para 41 of his Honour's judgment-para 41 being a matter to which we will return later. Paragraph 41 reads as follows: Thirdly, on any formulation of the limits of an appropriate request, an evaluative judgment is required as to the scope of the modifications for which the Minister's approval is sought. That will involve not merely noting changes to the description of the project, but consideration of the environmental consequences. These are matters which will fall squarely within the assessment and investigation to be undertaken by the Minister and by the Director-General. 25Mr Lazarus expanded upon the need for that evaluative judgment to which Basten JA referred in para 41 by taking us to an element contained in his Honour's decision at para 53 where his Honour said, amongst other things: Construing s 55 in its context, it is clear that the modification of an approval was something intended to have limited environmental consequences beyond those which had been the subject of assessment. 26At this time, it is appropriate to note that the definition of modification contained in s 75W(1) is an inclusive definition-that is it adds the word "including" after the general terms before proceeding to expressly provide for two elements to be included in the definition. It is not, self evidently, to be intended as an exhaustive definition. 27Mr Lazarus submitted to us in, both his written and oral submissions, that there were three matters that should lead us to conclude that the modification power in s 75W is limited and should not be applied to this application. It is convenient to set out, in summary, those contentions in his submissions. 28First, that the inclusive nature of the definition and the two elements that are specifically included by it evinces an intention to have a narrow definition that is constrained rather than one that, as submitted by Mr McEwen SC of counsel on behalf of the applicant, is effectively unconstrained provided it is sufficiently broadly consistent with the project that has been approved. 29Second, Mr Lazarus suggested that the time limit of 40 days in s 75W(5) suggests that the modifications should be simple and confined and not require detailed assessment. 30Third, that, if the legislature intended that rigorous assessment projects should be bypassed or not apply in the case of an application to modify the approval so in a fashion that might produce a radically different development, this was not intended and that the modifications that should fall within the scope of s 75W would be those that were of, in my words, a trifling or narrowly confined and minimal basis. 31He said that as a result of those three concerns, three steps followed for us to address. First that we should satisfy ourselves we have jurisdiction. Second, that we must make an evaluative judgment based on not merely the description of the proposed changes but on the impact and third, that, if we were to conclude that the modification will result in a radically different development, they being akin but not identical with the words that were used by Biscoe J and were the subject of the successful appeal to the Court of Appeal, we should reject the application. 32We accept that we should have regard to s 75W(1) and the inclusive definition. However, we reject his conclusions as the definition is essentially, from the naked face of the words, an inclusive one and not intended to be confined or in any way narrowed by the elements that are specifically brought within it by ensuring that the nominated terms are left as inclusions without there being any ambiguity as to them forming part of the matter. 33Thus, as a consequence, we are satisfied that the revoking or varying of a condition or imposing additional conditions or the changing of determinations made by the Minister under Div 3 do not act to narrow the words "Changing the terms of a Minister's approval." 34In passing, we note that the terms of the Minister's approval include a listing of all of the matters that are relevant including identification of the plans and, that if we have the power and the Minister were to have the power (as he would) to vary the terms, that can vary any term that incorporates the numbers of the plans-that being the effective way that the modifications are incorporated in the conditions of consent. 35We turn to his proposed implication that the limit of 40 days in s 75W(5) suggests that they should be simple and unconfined proposed changes. We reject this proposition. The broad scheme of the Act and its regulations set time limits as triggers for deemed refusal appeals. These vary and there is no reason given for any of the various times that are incorporated in the legislative scheme save that matters of somewhat greater complexity may have a longer period within which the assessment can take place prior to the deemed refusal provisions being triggered. 36We do note, however, that, in Part 4, quite complex development applications can also fall within a period similar to the period that applies to these modification applications and the Act do not necessarily limit in any way such applications to minor or trifling matters. We are satisfied that there is no proper constructional basis upon which we should adopt the second of Mr Lazarus' submissions. 37His third suggestion is that the legislature could not have intended that the rigorous assessment requirements for a project application could be bypassed by a modification where there was a modification that produced a radically different development. The concept of the intent of the legislature is one that is permitted to be taken into account by virtue of the provisions of s 34 of the Interpretation Act 1987 where a variety of matters in sub s (2) (e), (f) and (h) are permitted to be taken into account. 38Mr Lazarus has not taken us to any of these matters to demonstrate that there was some intention of an express nature of the type he claims intended by the legislature. The proper approach, in our view, is to adopt that dealt with by the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at para 70 where the majority said that a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. 39We are satisfied that if Mr Lazarus' submissions on this point were to be adopted that it would be cacophony rather than harmony that would result. We are therefore satisfied that Mr Lazarus fails in his submission on the jurisdictional point. It is not necessary, as a result, to deal at length with the submissions that were made capably by Mr McEwen on behalf of the applicant (in the written submissions for the applicant) but we do note as well that they drew attention to the matters set out in para 52 of Basten JA's decision in which his Honour said: The very concept of a project is amorphous in a sense which is not true of an object such as a car. Although there will be circumstances in which it is not clear which descriptor applies, it is usually possible to distinguish between a modified vehicle and a replacement vehicle. By contrast, a project, at least in part, a process and may be characterised or described from a variety of different perspectives. 40We note that in, Barrick, the various members of the Court adopted the position that it was not appropriate to adopt some prescriptive formulation consistent, for example, with the sort of formulation that is in s 96 of the Environmental Planning and Assessment Act to set out a characterisation test for modification applications under s 75W. We accept that some changes to a proposal, using a neutral word, might be so extreme as to fall outside the concept of modification. For example, to give an instance that is quite clearly fanciful (as well as being entirely unrelated to the present proposal) if there were to be an application for an Olympic swimming pool in the upper Hunter Valley granted consent pursuant to Part 3A, it would be quite clearly absurd to deal with an approval modification application to turn it into an open cut coal mine. 41However, here we are satisfied that there is a sufficient linear descent from Modification 3 to revised Modification 6 to be certain that this is, as a matter of fact, a series of modifications that is proposed. We do not, however, propose that the "sufficient linear descent" description is some sort of test, it is merely the appropriate term to apply to the application for which we have been given the responsibility of determination. 42As a consequence of all of the foregoing, we are satisfied that we have jurisdiction to deal with this modification application. 43To complete dealing with the written submissions made by Mr Lazarus, however, it is appropriate to deal with his praying in aid the planning principle set out by then Senior Commissioner, Roseth SC in Super Studio v Waverley Council [2004] NSWLEC 91. In that, a matter that Mr Lazarus raised in his written submissions and which we asked the parties to address, Mr Lazarus relied on the first of the two limbs of the planning principle discussed by Roseth SC-that is that the acceptability of an impact depends not only on the extent of the impact but also on the reasonableness of and necessity for the development that causes it. The second principle that the Senior Commissioner proposed related to landscaping and is not a matter that was pressed by Mr Lazarus. 44We observe that, consistent with what Mr McEwen SC put to us when invited to comment on this matter, that the planning principle that dealt with reasonableness and necessity for impacts on neighbouring properties had also been propounded by Roseth SC in a case called Pafburn v North Sydney Council [2005] NSWLEC 91, a case which I had had the necessity to review in Davies v Penrith City Council [2013] NSWLEC 1141. 45As a consequence of Davies, the anthropocentric element of "necessity" was removed from the planning principle in Pafburn and the revised planning principle published in Davies is the planning principle adopted by the Commissioners of the Court for the future. 46In this instance, following a review by the Commissioners of the Court of the planning principle in Super Studio, we have reached the conclusion that, with respect to the first point of that planning principle, it should no longer be observed and that the planning principle that is set out in Davies is the appropriate planning principle for that element in the future. 47With respect to the second element of the planning principle in Super Studio, it should, at least for the time being, remain-although it may be appropriate, on some future occasion, for the Commissioners of the Court to revisit and perhaps expand on that. 48Having found that we have jurisdiction, the tasks that now lie for us are set out in, in our view, in paras 41 and 53 of Barrick. Paragraph 41, Basten JA described the process as being not merely noting changes to the description of the project but considering the environmental consequences of it. In para 53, his Honour says, "Construing s 75W in its contexts, it is clear that the modification of an approval was something intended to have limited environmental consequences beyond those which had been the subject of assessment." 49It is therefore appropriate, in this context, that first we note the detail of the changes between Modification 3 and proposed revised Modification 6. Helpfully, they are set out, subject to some minor questions of detail, in a chart in a table in the evidence of Mr Neustein, the planner giving evidence on behalf of the applicant. They are set out at p 3. MOD_3 Amended MOD_6 Use Building 1 233 Residential Apartments 286 Residential Apartments Building 2 302 Services Apartments 337 Serviced Apartments Height Building 1 199.9 RL (29 storeys) 225.60 RL (38 storeys) Building 2 197.20 RL (29 storeys) 209.60 RL (33 storeys) GFA 45,148m2 51,426m2 FSR 10.94:1 11.89:1 Apartments Building 1 233 residential apartments 286 Residential Apartments Building 2 302 serviced apartments 337 Services Apartments Car Parking (including 250 public spaces) 508 spaces (fully within the 5 basement levels) 573 (in 5 basement levels and 3 podium above ground levels)