Mirvac Retail Sub SPV Pty Limited v City of Canada Bay Council

Land and Environment Court (NSW)|2021-09-29

Judgment

These proceedings arise following the Council's refusal of the applicant's (Mirvac) development application DA 2020/0206 (DA), for 'blanket approval' to carry out "fitout works" to a number of retail tenancies within the mixed-use development known as Birkenhead Point Shopping Centre, Drummoyne (the site).
The term "blanket" application is not a defined planning term. However, as Mirvac explained, it describes the purpose of the application, which is to circumvent the need for multiple development applications to carry out fitout works at the site as and when new tenants require new or altered fitouts.
As the future tenants are unknown the proposed works are not detailed on any plans. Nonetheless, Mirvac submitted that the type of works contemplated would ordinarily be those procured under the exempt and complying development regime found in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("Complying Development SEPP"). However, Mirvac accepts that by cl 1.17A(1)(d) of the Complying Development SEPP the Policy has no application in the present case because the site has been identified as a local heritage time in the Canada Bay Local Environmental Plan 2013 (CBLEP 2013). Instead of detailed works, Mirvac's application included plans with an inventory of heritage features which Mr Brooks, the applicant's heritage consultant, identified as "existing heritage fabric" that cannot be touched, thereby narrowing the scope of potential future works in each tenancy.

Decision

In assessing and determining a development application under ss 4.15 and 4.16 of the EPA Act, I am required to consider the matters of relevance to "the development the subject of the development application" in s 4.15(1): Baron Corporation Pty Limited v The Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (Baron) at [5]. Without any detail of the prospective works, I do not have the requisite understanding of relevant matters and their significance to the decision to be made to allow a proper consideration of the impact of the development: Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [13].
Taking relevant matters into consideration requires more than simply averting to a general description of them. I accept the Council's submission that the absence and/or inadequacy of the documents submitted with this application is of such significance as to prevent me from performing the statutory duty under s 4.15 of the EPA Act. Therefore, it follows that the development application must be determined by refusal and the appeal dismissed. My reasoning follows.

The assessment of a development application under Pt 4 Div 2 of the EPA Act

Mirvac's application to carry out development is made, subject to the Regulations, under s 4.12 of the EPA Act.
The term "development" is defined in s 1.5(1) of the EPA Act to mean: 1.5 Meaning of "development" (cf previous s 4) (1) For the purposes of this Act, development is any of the following - (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. (2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).
Clause 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regs) sets out who can make a development application. By cl50 (1) ( c), a development application is required to be accompanied by the information and documents specified in Part 1 of Schedule 1 to the EPA Regs.
Schedule 1 Forms, Part 1 cl 1(1) sets out the information to be included in a development application, and cl 2(1) lists the documents that must accompany the DA. Relevantly, cl 2(1) provides: Part 1 Development applications 1 Information to be included in development application (1) A development application must contain the following information - (a)-(e) (Repealed) (ea.) for biodiversity compliant development, an indication of the reason why the development is biodiversity compliant development, (f) a list of any authorities from which concurrence must be obtained before the development may lawfully be carried out or from which concurrence would have been required but for section 4.13(2A) or 4.41, (f1) in the case of an application that is accompanied by a biodiversity development assessment report, the reasonable steps taken to obtain the like-for-like biodiversity credits required to be retired under the report to offset the residual impacts on biodiversity values if different biodiversity credits are proposed to be used as offsets in accordance with the variation rules under the Biodiversity Conservation Act 2016, (f2) if the land is subject to a private land conservation agreement under the Biodiversity Conservation Act 2016, a description of the kind of agreement and the area to which it applies, (g) a list of any approvals of the kind referred to in section 4.46(1) of the Act that must be obtained before the development may lawfully be carried out. (g1)-(j) (Repealed) … 2 Documents to accompany development application (1) A development application must be accompanied by the following documents - (a) a site plan of the land, (b) a sketch of the development, (c) a statement of environmental effects (in the case of development other than designated development or State significant development), (d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation), … (i) if the development involves a change of use of a building (other than a dwelling-house or a building or structure that is ancillary to a dwelling-house and other than a temporary structure) - (i) a list of the Category 1 fire safety provisions that currently apply to the existing building, and (ii) a list of the Category 1 fire safety provisions that are to apply to the building following its change of use, (j) if the development involves building work to alter, expand or rebuild an existing building, a scaled plan of the existing building,… (l) in the case of development to which clause 2A applies, such other documents as any BASIX certificate for the development requires to accompany the application, (m) in the case of BASIX optional development - if the development application is accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A for it to be so accompanied), such other documents as any BASIX certificate for the development requires to accompany the application, (n) if the development involves the erection of a temporary structure, the following documents - (i) documentation that specifies the live and dead loads the temporary structure is designed to meet, (ii) a list of any proposed fire safety measures to be provided in connection with the use of the temporary structure, (iii) in the case of a temporary structure proposed to be used as an entertainment venue - a statement as to how the performance requirements of Part B1 and NSW Part H102 of Volume One of the Building Code of Australia are to be complied with (if a performance solution, to meet the performance requirements, is to be used), (iv) documentation describing any accredited building product or system sought to be relied on for the purposes of section 4.15(4) of the Act, (v) copies of any compliance certificates to be relied on, (o) in the case of a development involving the use of a building as an entertainment venue or a function centre, pub, registered club or restaurant - a statement that specifies the maximum number of persons proposed to occupy, at any one time, that part of the building to which the use applies,

A description of the development

The Statement of Environmental Effects (SEE) submitted with the DA, describes the proposed development at pages 2 and 7 in the following terms: "… Council Approval to permit minor works in accordance with a set of heritage conservation principles (Heritage Specification) as prepared by GBA Heritage. The objective of the Fitout Design Heritage Specification is to create a clear set of requirements for minor internal tenancy works that are implemented at the design, certification, and construction stages. The works will be carried out under separate Construction Certificates." "…The proposed development seeks Council development consent for minor internal works within the retail tenancies in Blocks D, J, K and L of the Birkenhead Point retail complex. The minor works will be the subject of separate Construction Certificate and Occupation Certificate Applications under this single "Minor Works Approval DA". This approach will avoid the need for separate DAs to be lodged with Council for minor works to the retail tenancies and is a streamlined approach to the planning approvals process for new shop fitouts, removing existing shop fitouts, repair/refurbishment and alterations to existing fitouts and signage within the site to minimise time and cost for new retail tenants and to provide certainty regarding the timeframes for establishing new retail tenants on the site."

Section 4.15 of the EPA Act

Section 4.15 sets out the matters for consideration in determining a development application. 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. (2) Compliance with non-discretionary development standards - development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority - (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards - (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard. Note - The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4). (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. (4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations. (5) A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4). (6) Definitions In this section - (a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and (b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.
The Council's Statement of Facts and Contentions (SOFC) (Exhibit 1), in addition to providing relevant background to the application, identifies the following legislation, policies, and guidelines as relevant to my assessment under s4.15 of the EPA Act: 1. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 2. State Environmental Planning Policy No 55 - Remediation of Land 3. CBLEP 2013 4. Sydney Regional Environmental Plan (Sydney Harbour Catchment) Development Control Plan 5. City of Canada Bay Development Control Plan 2017 (CBDCP 2017) 6. City of Canada Bay Contaminated Land Policy 7. City of Canada Bay Section 94 Contributions Plan.

Insufficient detail to allow a proper consideration of relevant matters under s 4.15 of the EPA Act

As is plain from the description of the proposed development in the SEE, the DA is submitted on the basis that there is no need at this stage to show the features and configuration of the proposed fitout works to any of the relevant retail lots within the building (SOFC in Reply par 1(b)); and that the Court should accept that the scope of future, individual fitouts can vary significantly (SOFC in Reply par 1(d)). In time, after the grant of consent, these matters can be assessed against the standards for complying development at the construction stage (JPR, par 41).
As such, the Court must accept that the extent of potentially relevant impacts are unknown because the proposed works have not been specifically identified. (JPR, par 3.28).
Mr Lettice, the Council's planner, gave evidence that this approach results in the deferral of essential matters which need to be determined before the grant of development consent. He is of the opinion that the fitout works generally will result in "wholesale changes to the tenancies" beyond "minor works" and that repeated fitout works may have cumulative adverse impacts on surrounding residential land uses (Joint Planning Report (JPR), par 3.27).
Ms Espinosa, Mirvac's planner, conceded as much when she acknowledged that the fitout works may require the installation of plumbing services, which may include intensive electrical, ventilation and plumbing works, and, if approved in this blanket DA there would be no assessment of the impacts of these non-heritage works. Without any assessment, the Council submits the claim that the works are minor (Applicant's written submissions at par 50) cannot be supported or accepted.
And while Mr Brooks' scope of works seeks to avoid "material damage" to the identified heritage fabric in each lot - putting aside Ms Higgin's criticism that the inventory is incomplete - the Council is concerned that what constitutes "heritage fabric" or "material damage" is not clearly defined within the application (Exhibit E, 2). It is simply unsatisfactory, when fitout works are completed, as Mr Brooks accepted - the certifier will need to determine whether there is "material damage". Additionally, the Council is concerned about any adverse impact on the aesthetic values of Birkenhead Point more generally. Values which Mirvac concedes are a "key component of the significance of the heritage fabric of Birkenhead point" (Exhibit F, Heritage assessment dated August 2018, 80).
As pointed out by Ms Higgins in the Joint Heritage Report (JHR) at pars 24 and 26, the Court is required to consider the impact of the proposed development on the heritage significance of the former factory buildings: CBLEP 2013, cl 5.10(4) before the grant of consent: Tomasic v Port Stephens Council [2021] NSWLEC 56 at [174]. In this case, that impact cannot be assessed without understanding the exact nature of the work; and depending on the nature of the works proposed, there may be BCA, accessibility and other issues that have a flow on effect on heritage impact: JHR at par 27.
Mr Brooks does not directly respond to this aspect of Ms Higgin's evidence. However, in Court he confirmed his written assessment that there will be no adverse impact on the basis that the heritage specification is sufficient to address heritage impacts (JHR at pars 50-51). In short, he believes that any work that complies with the heritage specification will ensure no adverse impact (JHR at par 44).

Findings

For the reasons advanced by the Council's experts in their oral and written evidence, I accept that without knowledge of the proposed works the Court cannot know whether the ultimate development will be sympathetic to the existing heritage fabric or have an adverse impact. To my thinking this is reason enough to refuse the application in respect of the heritage item.
That said, the consideration called up by s 4.15 of the EPA Act is not confined to the impact of the development on the heritage fabric in each retail lot. The section requires a consideration of "...all matters of relevance to the development the subject of the development application" (Baron). Construction impacts also need to be addressed. The fact that a construction certificate will need to be issued in the future does not absolve a consent authority from assessing relevant impacts at the date of consideration of the development application: Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135 at [61]-[62]. In that regard, I find on the evidence before the Court that there are insufficient details of the proposed works to allow me to undertake the requisite assessment of the impacts of the proposal.
In forming this view I accept that what constitutes sufficient detail for assessment purposes of an application needs to be considered in its context: Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 at 13; [2012] HCA 3 at [26]; and that the failure to provide a sketch showing proposed works, may not necessarily invalidate the application: SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [15]. However, the applicant's failure in this case to specify any detail whatsoever of the proposed works necessarily frustrates any attempt to carry out the assessment mandated by s 4.15(1)(b) of the EPA Act.

Conclusion

For the reasons stated, the application is refused consent and the appeal dismissed.

Orders

The Court orders that: 1. The appeal is dismissed. 2. Development Application No. DA-2020/0206 for fitout works to the retail tenancies within existing commercial mixed-use development on the site under this single application at 19A Roseby Street, Drummoyne NSW 2047, known as Lot 110 DP1019787, is determined by refusal of consent. 3. The exhibits are returned except for A and 1. ………………………. S Dixon Senior Commissioner of the Court

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: 14 October 2021

(2019) 243 LGERA 338

(2017) 222 LGERA 286

(2000) 111 LGERA 181

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