Stamford Property Services Pty Limited v Council of the City of Sydney

Land and Environment Court (NSW)|2014-10-01|Before: Mr P

Introduction 1SENIOR COMMISSIONER: In these proceedings an application has been made by Mulpha Australia Limited (Mulpha) for joinder pursuant to s 39A of the Land and Environment Court Act 1979 (the Court Act) and, in the alternative, if joinder were not to be granted pursuant to that provision, for more limited participation pursuant to s 38(2) of the Court Act known as a Double Bay Marina joinder, that being the process derived by Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. 2The applicant on the appeal, Stamford Property Services Pty Ltd (Stamford), opposes joinder on any basis, whilst the respondent on the appeal, the Council of the City of Sydney (the council), consents to joinder on either basis. 3Section 39A of the Court Act permits on an appeal of the type in these proceedings, amongst others, for the Court to order the joinder of a party to become a party to the appeal if one of three tests in the alternative in ss 39A(a) and 39A(b)(i) and (ii) are satisfied, those tests being: (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that: (i) it is in the interests of justice, or (ii) it is in the public interest... 4The Double Bay Marina provision is derived from s 38(2) of the Court Act, a provision that reads: In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. 5I observe that Double Bay Marina joinder predates s 39A of the Court Act and there is at least some respectability to the proposition that s 39A may well have superseded and rendered redundant the provisions for joinder said to arise pursuant to s 38(2). Although a matter of potentially fruitful litigation and speculation, it is not a matter that requires my adjudication in these proceedings. 6The power to join under s 39A or under s 38(2) is facultative and the relief as to whether such application should be granted it discretionary (see the observations of Sheahan J in Quakers Hill SPV Pty Ltd v Blacktown City Council [2012] NSWLEC 200 at [18] and his remarks in Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [42] and the cases therein cited). 7In addition to the Class 1 proceedings to which Mulpha seeks to be joinder, Mulpha has also commenced Class 4 proceedings which, amongst other issues, raises in the first prayer for relief sought what seems to me to be the principal matter raised by Mulpha in these proceedings as warranting its joinder, namely, an incompatible self-contradiction within the provisions of the City of Sydney Development Control Plan 2012 (the Development Control Plan). 8I note, only for the purposes of recording it in these proceedings, that Mr Hutley of Senior Counsel who appeared for Mulpha gave an undertaking that, if Mulpha were to be joined in these proceedings, Mulpha would discontinue the Class 4 proceedings.

Mulpha's proposed contentions 9Mulpha has set out what it proposes to be its Statement of Facts and Contentions if it were to be joined as a party pursuant to s 39A. They are set out behind Tab K in Exhibit RC-1 to the affidavit of Robert Chambers sworn 25 September 2014 (read by the applicant on the motion, on the motion). 10That Statement of Facts and Contentions sets out significant elements of fact that Mulpha says should be put into contest in the proceedings in addition to those matters that are set out in the council's Statement of Facts and Contentions dated 5 September 2014. Although there are nine such pages of such material, including the formalities at the commencement of a Statement of Facts and Contentions, it is not necessary in these proceedings to canvass them. 11However, Mr Chambers has set out in this draft Statement of Facts and Contentions, at pp 10 through to 14, five contentions that Mulpha says it ought be able to canvass if joined as a party to the proceedings and which, if not joined, would not be adequately canvassed if it merely participated as an objector on the same basis as any other objector would ordinarily participate in merit appeal proceedings in Class 1 in this Court. 12The first two contentions concern the Development Control Plan inconsistencies to which I have adverted. They relate to setbacks from the two street frontages that the site (which is located on the corner of Macquarie Street and Albert Street in the Sydney CBD) should have as a result of the provisions of the Development Control Plan - either as interpreted by Mulpha or as interpreted by the applicant and the council in the proceedings proper. 13In addition, Mulpha raises three further matters that it says are matters of substantial development merit that also warrant being canvassed by joinder pursuant to s 39A or a Double Bay Marina joinder. They are view loss impact on the InterContinental Hotel, heritage impacts in the precinct, and urban design issues. I do not propose to canvass them in extenso at this point of the decision but will return to them later.

The conflict in the Development Control Plan provisions 14The first matter requiring attention is the conflict in approach to the Development Control Plan. There are a number of matters that need to be considered in this regard. 15The first is that the first of the contentions raised by the council in Exhibit 20 on the motion is its contention that there should be a site specific development control plan prepared for an application for development on this site. 16That requirement arises from the provisions of cl 7.20 of the Sydney Local Environmental Plan 2012 (the LEP) which requires, relevantly in 7.20(2)(a), that ,in the centre of Sydney, if a development is proposed which would result in a building with a height greater than 55 metres above ground level, a site specific development control plan is required to be prepared embodying all of the matters that are set out in 7.20(4) of the LEP. 17There is a power contained in 7.20(3) for the council to waive that requirement under certain circumstances and, undoubtedly as the matter will unfold in the substantive proceedings, standing in the shoes of the council, the Court can consider whether it is appropriate to exercise the power to waive the requirement for a site specific development control plan. 18The council also raises the issue of setbacks to the Macquarie and Albert Street boundaries of the site. It does so in its contention 2 with respect to the site specific setbacks above the street frontage control for Macquarie Street and in its contention 3 on a similar basis for Albert Street. These are quite starkly different to the Development Control Plan related setback issues pressed by Mulpha on its application for joinder. 19It is important, at this stage, that I note that there are strictures on how this Court should approach a development control plan. They were set out by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589; (2001) 115 LGERA 373 where in the decision of the then Chief Justice, Spigelman CJ three propositions emerged from what he wrote at para 75 and they are these: (1) Although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered; (2) The provisions of a development control plan are to be considered as a fundamental element in, or focal point to, the decision making process, particularly if there are no issues relating to compliance with the relevant local environmental plan; and (3) A provision of the Development Control Plan directly pertinent to the application is entitled to significant weight in the decision making process but is not, in itself, determinative. 20The third of those propositions is specifically engaged, in my view, by the conflict issues raised by Mulpha in these proceedings. It is also to be noted as propositions to be derived from what his Honour said in Zhang that, on one hand, the mere fact that a proposal meets the requirements of a development control plan does not automatically mean that a consent will be granted but, on the other hand, if a proposal does not meet a development control plan's requirements, consent may still be granted if, after a proper and genuine consideration of the provisions of the a development control plan and consideration of all other matters that are relevant under s 79C of the Environmental Planning and Assessment Act 1979 (the Act), it is appropriate to grant such a consent. 21The provision in the LEP at cl 7.20 to which I have referred is consistent with s 79D of the Act whereby there may be a requirement in an environmental planning instrument, as the LEP is, to require a development control plan to be prepared for a particular development as here arises. It is also consistent with the provisions generally of development control plans in s 74C of the Act, an Act which also provides that a development control plan can be prepared for the purposes of amending an existing plan. This is permitted by 74C(2)(b)( with such an amending plan coexisting with the principal plan). 22The regulations also provide for the process of amendment of development control plans and reg 22 of the Environmental Planning and Assessment Regulation 2000 provides that a council may amend a development control plan by a subsequent development control plan and it may repeal a development control plan (in circumstances which do not here arise). 23The power, however, to amend a development control plan by a subsequent development control plan is not only relevant for the purposes of the proactive requirement of cl 7.20 of the LEP but the failure to do so is a relevant consideration in the joinder application that I am now considering. 24Mulpha says the relevant and fundamental inconsistency in the Sydney Development Control Plan 2012 applies specifically and is confined to the site. It arises in the following circumstances. Part 2 of the 2012 development control plan permits the designation of Special Character Areas within Central Sydney, amongst other places. 2.1 deals with Central Sydney and says: Special Character Areas nominated within Central Sydney are considered to be of significance and important to the identity and quality of Central Sydney and include some or all of the following characteristics: o A character unmatched elsewhere in central Sydney; o A concentration of heritage items and streetscapes; o A highly distinctive element in the public domain; o A focus of public life with high cultural significance; and o A widely acknowledged public identity. 25There are a number of requirements for consistency with objectives that are set out following the element to which I have just adverted. Two of them are relevant to the present proceedings for joinder. They are (b) and (f). They are in the following terms: (b) Ensure development has regard to the fabric and character of each area in scale, proportion, street alignment, materials and finishes and reinforce distinctive attributes and qualities of built form; and (f) Conserve, maintain and enhance existing views and vistas to buildings and places of historic and aesthetic significance. 26One of the Special Character Areas is the Macquarie Street Special Character Area. All of the site that is the subject of the merit appeal is within the Macquarie Street Special Character Area. At least part of the land owned by Mulpha is also in the Macquarie Street Special Character Area adjoining and to the south of the site in the proceedings. 27It is not necessary to set out in detail any material concerning the Macquarie Street Special Character Area but it is appropriate to note an element of description of it that encompasses not only the site but the portion of the Mulpha property to which I have adverted. It is contained in 2.1.6 of the Development Control Plan and is in the following terms: Macquarie Street forms the eastern built edge of the City Centre. It is characterised by two distinct sides: its western built edge consists of medium scale buildings stepping up to the city high rise beyond, creating a prominent city skyline when viewed from the Botanic Gardens. 28The Stamford site and the Mulpha sites in these proceedings form part of that western built edge. 29There are controls then contained in Part 5 of the Development Control Plan that relates to street frontage heights and setbacks for Special Character Areas. The objective for these controls are to Enhance and complement the distinctive character of Special Character Areas with compatible development. The relevant control deriving provision is contained in para 1 under the heading "Provisions" and is in the following terms: Minimum and maximum street frontage heights and front setbacks for buildings in or adjacent to a Special Character Area must be provided in accordance with Table 5.1 and as shown in figures 5.12 to 5.19. 30Critically, in these proceedings, it then continues, Where the figure shows the entire site as shaded, additional storeys above the street frontage height is not permitted." 31Table 5.1 in the DCP gives, as its map reference to Macquarie Street, the reference G and provides, in these terms, for street frontage heights: 45 metres for sites without heritage items; or the street frontage height of the heritage item on the site; and for 93 - 97 Macquarie Street, the street frontage height of the highest heritage item on the same side of the street block in which the site is located. 32That latter provision applies to the site and the height thus to be imposed (if that provision were to prevail) is that of Transport House immediately adjacent to the south. 33However, the earlier provision to which I adverted required compliance not only with that description in words but also compliance with the provisions in the relevant map, which is figure 5.15. 34Figure 5.15 shows the entirety of the site owned by the applicant in the substantive proceedings as being shaded but shows differential marking for the minimum setback (in metres) across the Albert Street and Macquarie Street frontages in a fashion that is inconsistent, it is said by the applicant on the motion for joinder, with the earlier provisions set out in the written form. 35The response to this inherent conflict is said by Stamford to be the result of a drafting error by the council. The council concurs in this proposition. 36Exhibit 1 on the motion is an email chain commencing in November 2013, the relevant element of which being an email from a Ms Freeman to people who are in a position to respond to her inquiry. I assume, from the subsequent response, that that includes or is drawn to the attention of persons within the council for this purpose as one of the later replies comes from an officer of the council. 37There are two paragraphs that warrant repetition in these proceedings. They are in the email from Ms Freeman to a Mr Corradi, a Ms Reeve, and a Mr McKay. The paragraphs say: Can I please clarify something with you? In the previous DCP there was a 30m tower setback control for the subject site above the street wall height. I understand that the (sic) was intent to change this in the new DCP to require a 10m setback only. I remember the issue was discussed in the postexhibition report on the new DCP and I recall a report recommending a 10m setback to the tower on Macquarie Street. The Special Character Area provisions in the new Sydney DCP 2012 map (Page 17, Section 5,0 - see image below, say that the setback is to be 10m (in numbers) from Macquarie Street & 8m from Albert Street, but show the blue shaded setback being the full depth of the site. It appears to be a contradiction and inconsistent with other sites on Macquarie Street - can you please confirm how to interpret these controls? Is it just a mapping error? 38Figure 5.15 is reproduced below. 39Subsequently, on 16 December, Ms Peters (an employee of the council I infer from her email address) replied to Ms Freeman in the following terms: Further to our discussion earlier today, I have confirmed that the modifications made to the DCP as described in Attachment A to the report considered by Council in March 2012 refer to a 10 metre tower setback to the Macquarie Street frontage rather than the tower setback of 30 metres indicated by the blue shading. As stated in your email it would appear that there is a mapping error by not having the blue shading aligning with the setback figures marked on the plan. 40The Development Control Plan is a document that is made by the Council. Staff of a council have no power or authority unilaterally to waive, amend, or otherwise vary the provisions of a development control plan. 41There is no resolution in evidence before me of the Council ever having considered and, if having considered, resolving to rectify the conflict that has been demonstrated to exist in the printed, authorised document published by the Council as its development control plan. 42Despite this matter being known to the council at least since December 2013, no steps have been taken to amend or correct the Development Control Plan despite the fact that s 74C of the Act, in s 74C(2)(b) permits the amending of an existing plan. 43At law, it seems to me, there is a fundamental conflict in the Development Control Plan unresolved and unpleaded to by the council in these proceedings. Indeed, Mr Clay in his brief participation (not to be taken as making any criticism of Mr Clay by so describing his participation), Exhibit 20 tendered by him on behalf of the council and a letter of 29 September 2014 expressly disavows any reliance on or debate about in the proceedings the point that is raised by Mulpha with respect to the Development Control Plan. 44The letter of 29 September 2014 is to the lawyers representing Mulpha from the council's Senior Solicitor. It says, inter alia: For the purposes of clarity, I confirm that Council's position in relation to the interpretation of the setback controls in the Sydney DCP 2012 remains as outlined in Contentions 2 and 3 of the Statement of Facts and Contentions and the respondent will conduct the hearing on that basis. 45How to resolve a conflict in a development control plan of the fundamental nature that is revealed by these proceedings is not merely specific, in my opinion, to the particular development proposal that requires consideration and determination in these proceedings but also raises potentially matters of wider and more general importance. 46There is no authority of which I am aware or to which I was taken that deals with this point. 47I am therefore satisfied that s 39A is engaged and satisfied by Mulpha's application on this point not only on the basis of the test set out in s 39A(a) but is also expressly engaged by the provisions of s 39A(b)(i) and (b)(ii) and that on that basis it is appropriate to order joinder of Mulpha in these proceedings. 48Indeed, the fundamental nature of the conflict is so basic that I do not consider an extensive canvassing of the wide range of authorities that are available for my consideration concerning joinder under s 39A are required, but I do note that, specifically, the approach that I have taken I consider to be consistent with the decision of Preston CJ in Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802 and 159 LGERA 361, particularly his Honour's remarks at para (57) and (59) - therein expressed in the negative as to why the owners corporation in those proceedings ought not be joined - with the deletion of the negative being the position in this case, that is that this is a case where the Court would be deprived of meaningful assistance if Mulpha were not joined. 49Secondly, the particular matters proposed to be canvassed by Mulpha are of sufficient importance as to require being addressed in the proceedings and to inform the Court so that it can give proper consideration to them, that being the positive proposition in my view to be derived from (59) of his Honour's judgment.

Mulpha's other proposed contentions 50Although my determination that Mulpha should be joined on the point of the conflict in the Development Control Plan is sufficient for the purposes of my determination, it is also appropriate, in my view, for me to canvass briefly the other matters that are pleaded by Mulpha as a basis for joinder. 51I do so in case there is any application made of the nature that was dealt with by Pepper J in Manderrah Pty Ltd v Woollahra Municipal Council (No 2) (2013) NSWLEC 115 where, in those proceedings, her Honour dealt with an application to strike out contentions in a Statement of Contentions in Class 1 proceedings where a party had been joined. 52The approach taken by her Honour, - that is, to limit in effect the nature of the participation after joinder had been granted - is a matter that may be engaged in these proceedings and it is unnecessary for me to make any comment (nor would it be appropriate for me to make any comment) as to the approach taken by her Honour in Manderrah. It is, however, appropriate for me to provide an assessment basis that might be appropriate to be considered - if such an application were to be contemplated by either the applicant or the respondent in the substantive proceedings. 53Therefore I turn to the other three bases for which joinder was sought by Mulpha. They were, as I earlier indicated, view loss impact on the InterContinental Hotel and matters of heritage impact and urban design, proposed draft contentions 1 and 2 relating to setback having been the subject of my earlier observation and determination.

Reviewing planning principles 54In this matter, Mr Hutley, on dealing with the first of those contentions raised the question of reliance proposed by Mulpha on the planning principle in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. 55As I observed recently in Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167 at (30), the Commissioners of the Court have undertaken a review of the published list of planning principles in order to assess which remain relevant in their original form; which, if any, might warrant revision or replacement (as was undertaken in Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187); or which principles, if any, were no longer relevant and should for the future be disregarded. 56As part of that process, the Commissioners have considered through the collegiate system used within the Court for the consideration of planning principles the continuing relevance of the planning principle in Tenacity. 57The Commissioners have collectively concluded that this principle remains relevant and does not require revision.

Mulpha's objections based on its additional contentions 58Mr Galasso helpfully set out in his written submissions the locations where conventional objector material had been provided by Mulpha concerning the three other matters that are proposed to be relied on for joinder. With respect to views, they are set out at para 3.20 of his written submissions; on heritage matters at 3.26; and on urban design at 3.28. I do not propose to read those matters onto the transcript but they will be on the Court's file if they need to be referred to in any other proceedings. 59To the limited extent that Mr Galasso has otherwise conceded, to which I will return shortly, the other matters appear to me (on an examination of the material contained in Exhibit RC-1 to Mr Chambers' affidavit) to have been dealt with adequately on a conventional objector submission basis. 60I do not consider that any of those matters, except for the exceptions to which I will return briefly shortly, warrant joinder under any of the three heads of potential joinder provided in s 39A. I am satisfied that on the basis of the objection material they are likely, except for the concession areas, to be sufficiently addressed by the council both in its contentions and through the conventional objector material basis.

Matters conceded as not contended by the council 61Mr Galasso conceded that, of the additional contentions that were proposed by Mulpha, four elements of them were not matters that would be canvassed by the council arising out of the council's contentions. They are contained in paras 4.2 and 5.1, 5.2, and 5.3, on my note, of Mulpha's contentions. Paragraph 4.2, which is under the heading of "Heritage Impacts", is in the following terms: The proposed development will have a dramatic, substantial and negative impact on the character setting and significance of "Colonial Sydney", being part of the National Heritage List nomination as detailed on page 19 of the report of the Heritage Branch of New South Wales prepared for the meeting of the Approvals Committee of the New South Wales Heritage Council dated 4 April 2012. 62Under "Contention 5, Urban Design", para 5.1 reads: In addition to the design excellence deficiencies identified by the First Respondent, the propose development is further deficient in its urban design in that it contains inadequate communal open space and an inadequate pedestrian through-site link. 635.2 reads: In relation to communal open space, reliance on subterranean common areas and isolated open terraces on upper levels to increase the numerical provision of communal open space area is inappropriate, particularly in circumstances where the provision of private open space is not compliant. 645.3 reads: In relation to the pedestrian through-site link, its limited width and detailed design limit its utility and attractiveness to the public. 65Section 79C of the Act sets out the matters that are required to be considered as part of the evaluation of a development application. Section 79C(1)(d) requires the consent authority, or in proceedings such as these, the Court standing in the shoes of the consent authority, to consider any submissions made in accordance with this Act or the regulations. 66Section 79C(1)(e) requires the consent authority (and the Court again standing in the shoes of the consent authority) to consider matters in the public interest, the public interest being, in accordance with the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289, a wide and not inherently limited concept. First, these are matters able to be canvassed that is, the exceptions identified by Mr Galasso as matters that can be raised by Mulpha in its capacity as, in the words of Albert Haddock as described by AP Herbert in Uncommon Law, of an officious bystander. 67They are matters that are regularly of the type pressed by objectors in development appeals large and small from one end of the State to the other. None of them, to the extent that they go beyond the matters that are raised by the respondent in the proceedings, satisfy in my view any of the tests under s 39A as warranting joinder. As a consequence, had Mulpha not succeeded on the question of the discrepancy and conflict within the Development Control Plan I would not have been minded to join it as a party under either s 39A of the Court Act in any of its tests, nor under 38(2) as a Double Bay Marina joinder if, as I indicated, such a joinder were to remain appropriate.

Conclusion 68I have set these matters, out to the extent that I have, in the event that an application is made consistent with the decision of Pepper J in Manderrah and if her Honour's reasoning in Manderrah were to be applied in any such application. 69The consequence of all of the foregoing is that the orders that I propose take account of not merely the notation of the undertaking given by Mr Hutley of Senior Counsel concerning the discontinuance of the Class 4 proceedings but also the undertaking he gave for the timely provision or filing and serving of a Statement of Facts and Contentions consistent with that which is behind Tab K to Exhibit RC-1 of the affidavit of Mr Chambers. 70With respect to the filing of the Statement of Facts and Contentions, it is within my power in my view to order that that occur. With respect to the discontinuance, it is sufficient that I note the undertaking as I do not have the power to require it to be given effect.

Orders 71The orders of the Court in this matters therefore are as follows: Noting the undertakings of the applicant on the Notice of Notion to file its Statement of Facts and Contentions in a timely fashion and to discontinue the Class 4 proceedings that relate to the site of these appeal proceedings, the orders of the Court are: (1)Pursuant to s 39A of the Land and Environment Court Act 1979 Mulpha Australia Limited is joined as a party to matter 10627 of 2014. (2)Mulpha Australia Ltd is to file and serve its Statement of Facts and Contentions as set out behind Tab K to Exhibit RC-1 of the affidavit of Robert Chambers by 12 noon on 3 October. (3)The exhibits, other than Exhibit 20, are returned. Tim Moore Senior Commissioner 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: 03 October 2014

(2007) 159 LGERA 361

(2001) 115 LGERA 373

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