Spurbest Pty Limited v Sydney City Council

SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT: IN THE LAND AND MATTER No. 10765 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 28/03/2002

Spurbest Pty Limited Applicant v Sydney City Council Respondent JUDGMENT

1. Spurbest Pty Ltd ("the applicant") appeals against the refusal of Sydney City Council ("the consent authority" or "the council") to grant consent to development application D2001/00456. Pursuant thereto the applicant sought approval to subdivide the land known as 732 Harris Street and 849-855 George Street, Ultimo into three lots. Such lands are also known as lot 2 in DP 230567, lot 6 in DP 203873 and lot 1 in DP 63731 ("the site"). A plan of the proposed subdivision is annexed to this judgment.
2. A heritage building ("the heritage building") is erected upon the site with a frontage to 851-855 George Street, Sydney. Adjoining on its eastern side is erected a building known as 849 George Street, Ultimo which provides access to the heritage building.
3. The building erected on 732 Harris Street Ultimo lies to the north-west of the heritage building. A right of carriageway ("the right of way") extends on the southern side of 732 Harris Street and benefits several buildings having a frontage to George Street which are located to the west of the heritage building. The right of way does not benefit the heritage building nor 849 George Street. At present the land which is burdened by such right of way is lot 6 in DP 203873 (described as lot 102 in the proposed subdivision plan) and a portion of lot 7 in DP 208902 upon which is erected a building known as the Agincourt Hotel. Lot 7 in DP 208902 is not relevant for the present purpose except that a portion of the right of way extends over its land immediately adjacent to Harris Street. Planning Controls
4. The Central Sydney Heritage Local Environmental Plan 2000 ("the CS Heritage LEP") applies to the site. One of several aims of this plan is to conserve the heritage of the City of Sydney. Clause 7 thereof prescribes, inter alia, development which may only be carried out with development consent. Subdivision of a site of a heritage item requires development consent pursuant to sub-cl 7(1)(f) of the CS Heritage LEP. Further, as required by cl 11 of the CS Heritage LEP the consent authority must not grant consent to a development that will "materially affect" a heritage item referred to in Schedule 1 of the CS Heritage LEP unless certain specified criteria are satisfied. The site is listed in the Schedule 1 to such LEP. Pursuant to cl 13 the consent authority must take account of the effect of the proposed development on the "heritage significance of the heritage item" when considering an application for development consent within the vicinity of a heritage item.
5. The site is also affected by the Central Sydney Local Environmental Plan 1996 ("CSLEP") and by the Central Sydney Development Control Plan 1996 ("DCP 1996"). Pursuant to Pt 3 of the CSLEP the site is zoned as City Centre. Clause 18 of Pt 3 thereof defines the objectives of the City Centre zone. Sub-clause 19(2) of CSLEP provides that a development within the City Centre zone may be carried out only with development consent.
6. Sub-clause 28B(1) of the CSLEP relevantly provides:- 28B (1) This clause applies to the following development; (a) any development comprising the erection of a building exceeding 55 metres in height, or (b) any development on a site exceeding 1,500 square metres in area, The site exceeds 1,500 square metres in area.
7. Sub-clause 28B(2) of the CSLEP prohibits such development being carried out without a development plan as follows:- 28B (2) Except as provided by subclauses (4) and (5) and clause 28C(5), consent must not be granted for development to which this clause applies unless: (a) a development plan is in force for the land on which the development is proposed to be carried out, and (b) the consent authority is satisfied that the development is consistent with that development plan.
8. Sub-clause 28B(4) of the CSLEP allows the consent authority to dispense with the requirement of a development plan as follows: 28B (4) The consent authority may waive compliance with the requirements of subclause (2): (a) for any alterations or additions to an existing building that in the opinion of the consent authority, do not significantly increase the existing floor space ratio or height of the building, do not substantially impact upon adjoining buildings and are not visible from the street, and (b) for any change of use, extended hours of operation or temporary use for an existing building, (c) for the strata subdivision of an existing building, (d) for any other development that, in the opinion of the consent authority, is of a similar nature to development referred to in paragraph (a), (b) or (c), and (e) for any other development for which consent authority considers there are sufficient reasons to waive compliance with those requirements.
9. Sub-clause 28C(2) of the CSLEP sets out the criteria which must be incorporated into a development plan before it is adopted by the consent authority. It relevantly provides:- 28C (2) A development plan may be adopted by the consent authority only if it is satisfied that the plan adequately addresses the following matters and proposes high quality development with a floor spare [sic] ratio and height appropriate for the site and context: (a) design response to an analysis of the site and its context, (b) site amalgamation, having regard to the site's size and location, to sites included or excluded from amalgamation and to the impact on the development potential of adjoining sites, (c) uses, use mix and subdivision patterns, (d) sensitivity to heritage issues and streetscape constraints,

… (k) design excellence, having regard to clause 28D and particularly the processes referred to in clause 28D(2)(c) and (d). … Applicant's Submissions 10. The applicant submits that the provisions of the CSLEP as set out above do not apply to those developments which comprise the mere subdivision of land. The applicant refers to various provisions of the CSLEP and particularly to sub-cl 12(i) (achievement of high quality urban form and design), sub-cl 19(2) (requirement for a development plan in respect of advertising structures), the explanatory note to Pt 3A, sub-cl 28A (objectives for development plan), sub-cl28B (development plans) especially sub-cl (1), sub-cl (2) and sub-cl (4) thereof, sub-cl 28C(2) (reference to "design excellence" which appears in sub-cl 28C(2)(k)). Each reference is relied upon to support the submission that a development plan is only required in respect of built form, namely physical development. 11. Alternatively if a development plan is required the applicant submits that the circumstances of the development are such that the consent authority should waive compliance pursuant to sub-cl 28B(4) of CSLEP. The grounds relied upon in support of the waiver include the fact that only a subdivision of land is proposed, such development having no impact upon any built form nor upon the heritage building. 12. Initially the council's heritage expert had criticised the proposed subdivision because of the configuration of rights of footway and of easement applicable to the use of the heritage building. During the course of the hearing the applicant deleted such provisions and instead proposed the creation of an easement for services on proposed lot 103. Such easement would benefit the heritage building on proposed lot 101 as shown on the annexed plan and marked "M". 13. Additionally during the hearing, an easement for air and light over lot 103 in favour of the heritage building was proposed by the applicant. Such easement has been incorporated as shown on the amended plan and marked "L". The proposed easement for air and light would extend to a limited height. Having incorporated such provisions in the amended plan the applicant submits that there are no issues remaining which would impact adversely on the heritage building. Council's submission 14. The council submits that a development plan is required for the site by virtue of sub-cl 28B(2) of the CSLEP even though the application for development is made in respect of a subdivision of land. Secondly, the council submits that the proposed subdivision does not meet the description of "design excellence", being one of the objectives of the CSLEP since, contrary to appropriate subdivision practice, the subdivision would create portions of lots which are not contiguous. Further, having made a provision for a narrow right of way no provision is made for a turning circle. As a consequence, vehicular access to the buildings which the right of way is intended to service would be constrained. 15. Council expresses the concern that if the subdivision is approved it will give rise to an expectation on the part of the applicant that the land is capable of development utilising the subdivision boundaries proposed. The subdivision is the precursor for an application to develop the site for a multi-storey residential development, an application of which has already been made to the council and refused. The subdivision follows the historical subdivision boundaries of the original development which council submits is inappropriate for future development. Findings

Statutory Interpretation of 'Development' 16. The CSLEP does not contain a definition of "development", but the definition of development in s 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") provides:- development means : (a) the use of land, and (b) the subdivision of land, and (c) the erection of building, and (d) the carrying out of a work, and (e) [not relevant] (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument …

Section 26(1) of the EP&A Act relevantly provides:-

26(1) Without affecting the generality of section 24 or any other provisions of this Act, an environmental planning instrument may make provision for or with respect to any of the following:

(a) protecting, improving or utilising, to the best advantage, the environment, (b) controlling (whether by the imposing of development standards or otherwise) development, 17. Accordingly, pursuant to s 4 of the EP&A Act "development" specifically includes the subdivision of land. The term "subdivision of land" itself is defined in s 4 of the EP&A Act as follows: subdivision of land has the meaning given by section 4B

18. Section 4B of the EP&A Act relevantly provides:- 4B (1) For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected:

(a) by conveyance, transfer or partition, or (b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition. (2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of: (a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or

(b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

19. By virtue of s 11 of the Interpretation Act 1987 the term "development" contained in the CSLEP is to be given the same meaning as that contained in s 4 and s 4B of the EP&A Act. Accordingly the term "development" is to be interpreted for the purposes of the CSLEP as including subdivision of land unless it can be shown that a different meaning is intended.
20. The explanatory note to Part 3A of the CSLEP makes it plain that a development plan must address various issues, including subdivision of land. It states inter alia:- A development plan is to provide a design response and rationale for the proposed development in its context. It will need to address issues of: impact on adjoining sites, sensitivity to heritage items and streetscapes, site amalgamation, land use mix and subdivision patterns, bulk, massing and modulation of buildings, tower location in the context of other existing towers and the means by which 'design excellence' is to be achieved.
21. Certain provisions of the CSLEP support the submission of the council that "development" referred to in the CSLEP is to be interpreted as including the mere subdivision of land, and is consistent with the definition contained in the EP&A Act. Sub-clause 28C(2) of the CSLEP requires the consent authority to be satisfied that a development plan adequately addresses a variety of considerations. One consideration namely sub-cl 28C(2)(c) specifically addresses "subdivision patterns".
22. Council submits that sub-cl 28B(1)(a) is applicable to a specific form of "development" namely to a building of a specified height. Sub-clause 28B(1)(b) is not so limited. If it had been intended to apply solely to built form, then additional words could have been expected to make it clear that it applied in respect of any development comprising the erection of a building on a site exceeding 1,500 square metres in area. The Court accepts such submission and also the submission that the CSLEP provisions of Div 1 of Pt 3A should not be construed with the provisions of Div 2 of Pt 3A. The kind of development referred to in Div 1 is more expansive than that referred to in Div 2.
23. Sub-clause 28B(4)(b) of the CSLEP provides for exemption from the requirement of a development plan in respect of the use of a building which does not involve physical development. The fact that an exception is provided for such development suggests that a development plan would otherwise be required even though no physical change is involved. Accordingly sub-cl 28B of the CSLEP contemplates developments that do not affect built form or urban form.
24. The applicant has submitted that the use of the word "on" in sub-cl 28B(1)(b) of CSLEP implies a built form. The use of such word does not lead to the narrow interpretation suggested by the applicant when all the relevant provisions are considered. Adopting the purposive approach to statutory interpretation in Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404, the Court concludes that an application for mere subdivision of land is a form of "development" pursuant to the provisions of Pt 3A of the CSLEP to which a development plan is required by virtue of cl 28B thereof. Waiver
25. The applicant submits that if the Court determines that the provisions of the CSLEP require a development plan, a waiver should be granted pursuant to the provisions of sub-cl 28B(4)(e) of the CSLEP. The applicant relies upon the absence of built form and claims that no matters involving "design excellence" such as massing, bulk, architectural treatments, site constraints, floor space ratios are proposed, which only arise when an application is made for physical development of the site.
26. As has been determined previously in this Court, subdivision proposals can form an integrated aspect of completed development. In Memel Holdings Pty Ltd v Pittwater Council (No. 3) [2001] NSWLEC 240 evidence was adduced that a proposed subdivision "… should not be considered independently of a development application for the erection of a new dwelling …". Bignold J concluded (at par 67):- … Moreover, it cannot be denied that the question of the future residential development of the proposed rear lot featured most prominently in the case, having been placed fairly and squarely "on the agenda" by the express terms of the Conservation Management Plan, the relevant parts of which, as I have earlier indicated, are to be given obligatory force by virtue of the imposition of the proposed Condition 28.
27. His Honour also stated (at par 68):- It is not uncommon in the context of consideration of a development application for the subdivision of land for consideration to be given to the question of future development of the subdivided lots: see Ingham Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 and Shoalhaven City Council v Lovell (1996) 136 FLR 58. The approach taken in Memel Holdings Pty Limited is consistent with another decision of this Court in Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79.
28. The applicant has foreshadowed its intent to redevelop the land by its proposal of a multi-storey building containing residential units. In these circumstances the identical consideration which was considered by Talbot J in Commonwealth of Australia and by Bignold J in Memel Holdings Pty Limited applies. That is, the council is entitled to consider a total development plan for the site. Subdivision is an important stage because of potential impact upon the ultimate development.
29. The provisions of Pt 3A of the CSLEP demonstrate that there is a specific regime applicable to sites considered to be significant for development. The objects of the CSLEP include the encouragement of "the orderly development of land" (sub-cl 11(e)); "the achievement of a high quality urban form and design in buildings and in the relationship of buildings with neighbouring development and the public domain" (sub-cl 12(i)); and "the efficient and orderly management of all phases of the development process" (sub-cl 12(o)).
30. The expert evidence of the council establishes that the proposed subdivision is unsatisfactory and unsuitable for the type of development ultimately proposed by the applicant on the site. The Court therefore concludes that no circumstances are advanced which would justify a waiver pursuant to sub-cl 28B(4) of the CSLEP. Remaining issues
31. In view of the above findings, it is unnecessary to determine the remaining issues concerning the merit of the application and the potential impact of the development on the heritage building and curtilage. Orders
32. The Court therefore orders:-
    1. The application be dismissed.
    2. The exhibits be returned.
    3. Costs reserved.

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