The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council

Land and Environment Court (NSW)|2018-09-27|Before: Preston CJ

The applicant's argument that cl 7.10 did not apply

The applicant's first ground of appeal challenged the Commissioner's finding that cl 7.10 of PLEP applied to the applicant's concept proposals for the development of the site. The applicant submitted, as it had before the Commissioner, that cl 7.10 only applies to development involving "the erection of a building" (the words in cl 7.10(2)). The applicant's reasons were as follows.
First, cl 7.10 of PLEP only applies to development applications seeking consent to carry out a particular subset of "development" within the meaning of that term in s 1.5 of the EPA, namely "the erection of a building". The applicant submitted that the EPA Act and the Environmental Planning and Assessment Regulation 2000 ("EPA Regulation") maintain a clear distinction between development applications that either do or do not involve the erection of a building. For example, the applicant noted that the fee payable for a development application is less for development that does not "involve the erection of a building, the carrying out of a work, the subdivision of land or the demolition of a building or work" (cl 250 of the EPA Regulation).

The Council's argument that cl 7.10 did apply

The Council maintained that cl 7.10 of PLEP did apply to the applicant's concept proposals for the development of the site and that the Commissioner did not err in so finding.
First, the Council submitted that cl 7.10 applies to development "involving" the erection of a building and is not limited to development "for" the erection of a building. The use of the word "involving" ensures that cl 7.10(2) applies in an expansive way, so that it is not limited to "stage 2" development applications which seek development consent for the "actual" erection of a building.
The Council submitted that a concept development application which seeks consent for a building envelope plainly "involves" the erection of a new building. Self evidently, any approved building envelope will have implications for the subsequent urban design process for the erection of the proposed new building. The approved building envelope will govern the setbacks, height, form and presentation of a building, and therefore the potential bulk and scale of a building in its streetscape context. Section 4.24(2) of the EPA (formerly s 83D(2)) provides that while any consent granted on the determination of a consent development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site. That being the case, the parameters of the building envelope, including urban design outcomes arising from that envelope, are critical in the planning merit assessment under s 4.15 of the EPA Act (formerly s 79C) because any subsequent consent must not be inconsistent with a concept plan approval.
Secondly, the Council submitted that this construction of cl 7.10(2) is supported by s 4.22(5) of the EPA Act (the former s 83B(5)). Under that provision, the consent authority, when considering, under s 4.15 of the EPA Act, the likely impact of the development the subject of the concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications. The Council submitted that this provision confirms two matters. First, it recognises that a proposal the subject of a concept development application can cause "impacts". The word "impacts" is not defined but it a word of wide import and must include urban design and visual impacts arising from a proposed building envelope. Secondly, it makes clear that the likely impact of a building that may be the subject of subsequent development applications may be considered but need not be considered. The provision gives the consent authority a wide discretion and permits consideration of the built form that may be the subject of the "stage 2" application.
Thirdly, the Council submitted that, as a matter of policy, it is critical that cl 7.10(2) apply to a building envelope. The importance of design excellence in relation to form is clearly and correctly explained by the Commissioner at [48]-[50] of the judgment.
Fourthly, the Council rebutted the applicant's argument that cl 7.10(4) mandates consideration of all of the matters in cl 7.10(4), some of which cannot be satisfied at the concept development application stage. The Council contended that the applicant's argument ignores the fact that the clause only mandates that the consent authority have regard to the list of factors in cl 7.10(4) in "considering" whether the development achieves design excellence. To the extent that a fact may not be relevant at the concept development application stage, the consent authority is entitled to give that factor little or no weight. For example, the Council conceded that the standard of materials and detailing would be irrelevant to design excellence at the concept development application stage (see cl 7.10(4)(a)). However, the form of the proposed envelope and whether it will improve the quality and amenity of the public domain will be relevant to a concept development application for the building envelope (cl 7.10(4)(b)), as would street frontage heights (cl 7.10(4)(d)(vi)) and the impact on, and any proposed improvements to, the public domain (cl 7.10(4)(d)(x)).
The Council noted that much of the case before the Commissioner concerned the subject matter of cl 7.10(4)(d)(x) in terms of the impact on the public domain arising from the overshadowing effect of the proposed building envelope. This had been accepted by the applicant before the Commissioner.
The Council submitted that to the extent that the factors in cl 7.10(4) do not relate to the concept development application stage, they can be appropriately discarded and deferred to the stage 2 application because each of those factors only need to be considered. It would be quite appropriate for a consent authority to find that any one or more of those factors should receive little or no weight in the assessment of the building envelope the subject of a concept development application. This does not mean that the clause has no work to do at the concept development application stage for a building envelope. Matters of design excellence are centrally relevant at the concept development application stage for a building envelope.

The Commissioner did not err in applying cl 7.10

I find that the Commissioner did not err in finding that cl 7.10 applied to the applicant's concept proposals for the development of the site involving the two building envelopes.
At the outset, it is important to recognise that a concept development application is still a development application under the EPA Act. The provisions of the EPA Act relating to development applications and development consents apply to a concept development application and a development consent granted on the determination of any such application (s 4.24(1) of the EPA Act). A development application can only be made for consent to carry out "development" (see s 4.12(1) of the EPA Act). A "development" is defined in s 1.5(1) of the EPA Act: "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."
Division 4.4 of the EPA Act applies to concept development applications and to consents granted on the determinations of those applications (s 4.21). A concept development application is "a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications" (s 4.22(1) of the EPA Act).
The "development" of a site referred to in s 4.22(1) is development in any of the ways defined in s 1.5(1) of the EPA Act.
A concept development application, just like a development application, seeks consent for development. This is emphasised by s 4.22(5) which provides: "The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications."
Note the reference to the "development the subject of a concept development application" and the need for the consent authority to consider the likely impacts of that development under s 4.15 of the EPA Act.
Section 4.15 requires the consent authority, in determining a development application, to take into consideration such of the matters in s 4.15 as are of relevance to the development the subject of the development application. One of the matters is "(a) the provisions of…(i) any environmental planning instrument". Clause 7.10 of PLEP is one such provision of an environmental planning instrument. Another matter in s 4.15(1) is "(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality". This requires consideration of the likely impacts of the development the subject of the concept development application (such as the likely impacts of the building envelopes).
A consent authority determines a concept development application under the same power as it determines all development applications, namely s 4.16 of the EPA Act. The consent authority determines a development application by granting consent to the application, either unconditionally or subject to conditions, or refusing consent to the application. The conditions the consent authority can impose on a consent to a concept development application are the conditions that the consent authority may impose under s 4.17 of the EPA Act on consents generally. A restriction, however, is that the terms of a consent granted on the determination of a concept development application are to reflect the operation of s 4.22(4) of the EPA Act. Subsection 4.22(4) provides: "If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection."
A consent granted on the determination of a concept development application for a site sets the parameters for the determination of any further development application in respect of the site. Section 4.24(2) of the EPA Act provides: "While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site."
If the concept proposals for the development of the site are building envelopes, any development consent to those building envelopes will fix the envelope within which any building can be erected. Any further development application could not seek consent to erect a building that would be inconsistent with the building envelope approved by the consent granted on the determination of the concept development application. A building could be inconsistent if it exceeds the approved building envelope, but equally it could be inconsistent if it is less that the approved building envelope. A building of 20 storeys is inconsistent with an approved building envelope of 15 storeys, but so too a building of 10 storeys is inconsistent with an approved building envelope of 15 storeys.
In this case, the applicant made a development application that set out concept proposals for the development of the site, being the building envelopes for a 13 storey mixed use building at 99-113 Macquarie Street (Epworth House) and for a 19 storey mixed use building at 119A Macquarie Street (Fellowship House). The development application contained the information required (including a description of the development) and was accompanied by the documents required (including a site plan of the land, a sketch of the development, including architectural plans, and a statement of environmental effects).
The concept proposals for the "development of the site" involved "the erection of a building" by proposing building envelopes within which buildings could be erected (after the grant of consent to subsequent development applications) and "the use of land", being the use of different parts of the buildings for the purposes shown in the indicative land use mix given in the statement of environmental effects. For the Fellowship House building envelope, the indicative land uses were a place of public worship, community facility and residential. For the Epworth House building envelope, the indicative land uses were retail, group home (transitional), community facility and commercial.
The fact that a concept development application still involves seeking consent for "development" (as defined in s 1.5 of the EPA Act) was at the heart of the Court of Appeal's decision in Bay Simmer. The Court of Appeal held that the primary judge was in error in finding that the staged development application in that case did not seek consent for development as defined in the EPA Act. As Basten JA said in [65]: "Further, the fact that consent to a staged development application will not allow any activity to be carried out does not alter the fact that the development application is an application to carry out 'development', which includes the use of land, the erection of a building and the carrying out of a work. There is no basis in the statutory scheme to conclude that any part of the definition is not engaged by a staged development application dealing with 'the development of a site'."
The Court of Appeal held that the consent authority was required, in determining a development application for concept proposals for the development of a site, to consider construction related impacts that are likely to be incurred in the actual carrying out of the development (at [67] and [83]).
It is with this understanding of what is involved in making and determining a concept development application that cl 7.10 of PLEP needs to be construed. The clause applies to "development involving the erection of a new building or external alterations to an existing building" (cl 7.10(2)). The language used in cl 7.10(2) differs from the language in the definition of "development" in s 1.5(1) of the EPA Act in two respects.
First, in the definition, development "is", amongst other acts, matters or things, "the erection of a building". Subclause 7.10(2) does not use this language; it does not simply say that the clause applies to development that "is" the erection of a building. Instead, cl 7.10(2) refers to development "involving" the erection of a building. The word "involving" widens the class of development to which cl 7.10 applies. Development that "is" the erection of a building is limited to being only the actual erection of a building. Development "involving" the erection of a building is wider; the erection of a building is included within the scope of the proposed development but the proposed development is not limited to being only the actual erection of a building.
Secondly, cl 7.10(2) specifies a narrower set of acts, matters or things than the EPA Act defines as being involved in the "erection of a building" in s 1.4(1). The defined term "erection of a building" in s 1.4(1) includes more acts, matters or things than "the erection of a new building or external alterations to an existing building" (in cl 7.10(2) of PLEP). This reveals an intention on the part of the drafter of cl 7.10 to apply cl 7.10 not merely to development that is the "erection of a building" as defined in s 1.4(1) of the EPA Act.
The applicant's development application sought development consent for the concept proposals for the development of the site of the two building envelopes for a 13 storey mixed use building (Epworth House) and a 19 storey mixed use building (Fellowship House). The concept proposals for the development of the site answer the description of being "development involving the erection of a new building". It is true that the concept development application did not seek consent to the carrying out of the development of the erection of the building in each of these building envelopes. Nevertheless, the development application sought consent for the building envelopes within which the two mixed use buildings could be erected once consent is subsequently granted to further development applications for the erection of the buildings. As noted earlier, any consent granted on the determination of the concept development application would fix the parameters of any new building that could be erected within the approved building envelope. Under s 4.24(2), the determination of any further development application for the erection of a building on the site cannot be inconsistent with the consent for the concept proposals for the development of the site. The development the subject of the concept development application (the concept proposals of the building envelopes) thereby involved the erection of a new building within the meaning of that expression in cl 7.10(2) of PLEP.
The conclusion that cl 7.10 can apply to concept proposals for the development of a site involving the erection of a building is not displaced by the requirement in cl 7.10(4) to have regard to certain matters in considering whether the proposed development exhibits design excellence. The requirement that the consent authority "must have regard to the following matters" in cl 7.10(4) is to be construed as a requirement to have regard to such of the matters in cl 7.10(4) as are of relevance to the development the subject of the development application (including a concept development application). The developments to which cl 7.10 applies, even though they all could be said to involve the erection of a building by reason of cl 7.10(2), nevertheless will differ from one another and have different likely impacts on the environment. The matters in cl 7.10(4) of relevance to a particular development the subject of a development application will therefore differ. If a matter is not of relevance to a particular development, the consent authority is not able to have regard to it. The consent authority does not breach its duty under cl 7.10(4) by not having regard to a matter that is not relevant to the development the subject of the development application.
The same conclusion applies to development the subject of a concept development application. If a matter in cl 7.10(4) is not relevant to the concept proposals for the development of a site, the consent authority will not be assisted, in considering whether the concept proposals for the development of the site exhibit design excellence, by having regard to that matter.
The legislative amendment of s 83B(5) (now s 4.22(5) of the EPA Act), in response to the Court of Appeal's decision in Bay Simmer, supports this conclusion. The consent authority, when considering under s 4.15 of the EPA Act the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals for the development of the site and does not need to consider the likely impact of carrying out the development that may be the subject of subsequent development applications. Applied to cl 7.10(4) of PLEP, the consent authority, when considering whether the development the subject of a concept development application exhibits design excellence, need consider only the likely impacts of the development the subject of the concept development application and does not need to consider the likely impacts of the carrying out of the development that may be the subject of subsequent development applications.
The conclusion that cl 7.10 can apply to concept proposals for the development of a site is also not displaced by the requirement of cl 7.10(5) for a competitive design process. Subclause 7.10(5) provides: "Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development: (a) development in respect of a building that has, or will have, a height above ground level (existing) greater than 55 metres, (b) development on a site greater than 1,000 square metres and up to 1,800 square metres seeking to achieve the maximum floor space ratio identified on the Floor Space Ratio Map, where amalgamation with adjoining sites is not physically possible, (c) development having a capital value of more than $10,000,000 on a "Key site" identified on the Key Sites Map, (d) development having a capital value of more than $100,000,000 on any other site, (e) development for which the applicant has chosen such a process."
Note that this subclause applies to a subset of the developments to which cl 7.10 applies. Clause 7.10 applies to all developments involving the erection of a new building but cl 7.10(5) applies only to development of one or more of the types stated in paragraphs (a) to (e). Concept proposals for the development of a site (such as building envelopes) can be development involving the erection of a new building (and hence development to which cl 7.10 applies) but might not be development of a type in cl 7.10(5)(a) to (e). If the proposed development is not development of a type described in cl 7.10(5)(a) to (e), cl 7.10(5) does not apply and there is no restriction on granting consent unless a competitive design process has been held in relation to the proposed development. It is not necessary to determine whether the applicant's concept proposals for the development of the site are or are not development described in cl 7.10(5)(a) to (e). This is because even if cl 7.10(5) does not apply to the applicant's concept proposals for the development of the site, this conclusion would not affect the conclusion that other provisions of cl 7.10 do apply to the concept proposals, notably cl 7.10(3) requiring the concept proposals to exhibit design excellence.
The Commissioner, therefore, did not err in law in finding that cl 7.10 of PLEP applied to the applicant's concept proposals for the development of the site.
The applicant has not established that the Commissioner otherwise erred in her application of cl 7.10. Subclause 7.10(3) precluded the Commissioner from granting development consent to the applicant's concept proposals for the development of the site unless she formed the opinion that the concept proposals exhibited design excellence. Concept proposals for the development of a site can exhibit design excellence. The concept proposals for the development of the site, which were the subject of the concept development application in this case, were building envelopes for 13 storey and 19 storey mixed use buildings. The proposed building envelopes set the key planning parameters of the form of the buildings, including their height, setbacks, bulk and massing. The form of each of the building envelopes could be evaluated in terms of its design excellence, as the Commissioner explained in [48]-[50] of her reasons for judgment.
In considering whether the concept proposals for the development of the site exhibited design excellence, the Commissioner had regard to such of the matters in cl 7.10(4) of PLEP as were of relevance to the development the subject of the concept development application. These matters were addressed in [48]-[50] of the judgment. The Commissioner concluded that she was not satisfied, under cl 7.10(3), that the form of the Fellowship House building envelope exhibited design excellence. Her reason was that the Fellowship House building envelope "detrimentally impacts on the amenity of the public domain in Parramatta Square" because of its excessive overshadowing (at [85] and [86] of the judgment).
The applicant has not established that this conclusion under cl 7.10(3) of PLEP was in error on a question of law.
Ground 1 is not established.

The alleged misconstruction of cl 4.4 of PLEP

The applicant's second ground of appeal is that the Commissioner misconstrued the FSR development standard in cl 4.4 of PLEP in finding that the Fellowship House building envelope will cause excessive overshadowing of the public open space of Parramatta Square.

The Commissioner's consideration of overshadowing

The Council's principal contention before the Commissioner was that "the proposed building envelope for Fellowship House would cause excessive overshadowing of the 'protected area' shown in Figure 4.3.3.7.3 Public Space Set Out of DCP 2011 (the protected area) and the overshadowing of Parramatta Square is contrary to the objective of cl 7.4 of PLEP 2011" (at [55] of the judgment).
Clause 7.4 of PLEP concerned overshadowing of certain public spaces in Parramatta, including Parramatta Square. Clause 7.4 provides: "(1) The objective of this clause is to protect public open space in Parramatta Square, the Lancer Barracks site and Jubilee Park from overshadowing. (2) This clause applies if the consent authority considers that development that is the subject of a development application is likely to cause excessive overshadowing of the public open space referred to in subclause (1). (3) The consent authority, in determining that development application, must take into consideration the relevant sun access plane controls specified for that land in section 4.3.3 of the Parramatta Development Control Plan."
The relevant sun access plane controls for Parramatta Square in s 4.3.3 of the Parramatta Development Control Plan (DCP) included Control C.7 for building form that provided: "C.7. Overshadowing is to be minimised within the area outlined in red in Figure 4.3.3.7.3. Individual buildings shall be designed so that no single point of the area outlined in red is in shadow for a period greater than 45 minutes between 12pm-2pm mid-winter."
The Commissioner made factual findings (in [59] of the judgment) about the extent and duration of overshadowing at Parramatta Square: "The planning experts agreed that the proposed Fellowship House building envelope overshadows the protected area for a period greater than 45 minutes between 12 noon and 2pm on the winter solstice, contrary to DCP 2011 controls C.3 and C.7 in 4.3.3.7 permitting a maximum of 45 minutes of overshadowing. The proposed Fellowship building envelope overshadows 11.5% of the protected area for 60 minutes, 8.4% for 75 minutes, 5.33% for 90 minutes, 2.4% for 105 minutes and 0.6% for the full two hours (exhibit G)."
The reason for the Fellowship House building envelope overshadowing Parramatta Square contrary to the DCP controls was that the building envelope was higher than the height development standard of 54 metres for the land. The applicant had proposed, in the concept development application, a building envelope for Fellowship House that took advantage of the 15% additional height that clause 7.10(8) of PLEP allows if the design for the new building is the winner of a competitive design process (under cl 7.10(5) of PLEP) and the consent authority is satisfied that the building exhibits design excellence. The statement of environmental effects stated that "the Stage 1 building envelope for Fellowship House has been designed to accommodate the 15% design excellence building height bonus to ensure that the Stage 3 DA can achieve this bonus without being inconsistent with the Stage 1 consent" (p 50). The inconsistency referred to is the requirement in s 4.24(2) of the EPA Act that the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site.
The plans for the building envelopes show the "15% bonus height" added to the Fellowship House building envelope (giving it a height of 62.1 metres instead of the 54 metres maximum height under the height development standard in PLEP).
The Commissioner found that the 15% bonus height added to the Fellowship House building envelope added volume to that envelope (at [58] of the judgment). The Commissioner recognised, however, that this additional volume did not cause the concept proposals for the development of the whole site to exceed the FSR development standard for the whole site (which was 8:1). The Commissioner stated in [20] of the judgment that: "The maximum floor space ratio for the site is 8:1 (Floor Space Ratio Map Sheet FSR_010 and cl 7.2 of LEP 2011). The FSR map shows the entire block including the site has a FSR of 8:1. The building envelopes for Epworth House and Fellowship House accommodate the gross floor area measured as a ratio to the total site area, including the parcel of land containing the Leigh Memorial Uniting Church."
The Commissioner found in [58] of the judgment that: "As the building envelopes shown in exhibit H indicate the additional volume of the design excellence clause bonus (subject to condition 4, exhibits 11 and O), it follows that the building envelopes for the proposal represent the approximate volume commensurate with the 8:1 FSR development standard for the site. The precise numerical value for FSR cannot be calculated under the definition of gross floor area in LEP 2011 until the stage 2 development application proposal."
The Commissioner similarly found in [63] of the judgment: "The site consists of three parcels of land; including the middle parcel of land containing the heritage listed Leigh Memorial Uniting Church. The cumulative volume of the concept proposal has been determined by reference to the FSR development standard of 8:1 applied [to] the whole site area, including the parcel of land containing the Leigh Memorial Uniting Church."
The Council contended before the Commissioner that the 15% additional volume of the Fellowship House building envelope, proposed by the applicant in order to take advantage of the design excellence bonus clause (cl 7.10(8) of PLEP), caused excessive overshadowing.
The applicant submitted before the Commissioner that cl 7.4(2) of PLEP only applied if the Commissioner concluded that the proposal is likely to cause excessive overshadowing. If the Commissioner concluded that the overshadowing of the public open space in Parramatta Square by the concept proposal is not excessive, then the Commissioner was not obliged to consider the controls relating to overshadowing of public open space in 4.3.3 of the DCP, because under s 3.43(5)(b) of the EPA Act, the DCP provision has no effect to the extent that it is inconsistent or incompatible with a provision of PLEP (at [56] of the judgment).
The applicant submitted further that the proposal's overshadowing of Parramatta Square during the lunch period on the winter solstice was reasonable. The applicant's planner, Ms Swan, listed a number of circumstances that she said warranted a variation of the controls in the DCP relating to overshadowing of the public open space of Parramatta Square. Two of the circumstances (in [60] of the judgment) were: "-There is significant tension between realising the development potential under the development standards in LEP 2011 and compliance with the DCP control for overshadowing, which is unreasonable because the DCP seeks to override the development standards and strict compliance with the control would represent a significant imposition on the development potential of the Fellowship House site; - The overshadowing of Parramatta Square by the building envelope of Fellowship House is balanced by the proposal for Epworth House which does not overshadow Parramatta Square. The applicant's submission labelled this the 'cumulative effect' of the combined overshadowing of Parramatta Square by Epworth House and Fellowship House."
The Commissioner addressed the applicant's arguments that the overshadowing of Parramatta Square by the Fellowship House building envelope was not excessive and that the circumstances warranted a variation of the DCP control relating to overshadowing of the public open space of Parramatta Square. The Commissioner said at [62]-[70] and [85]: "62. I do not accept the applicant's argument that the overshadowing of the protected area in Parramatta Square should be considered cumulatively in the sense that the building envelope of Fellowship House is balanced by the building envelope for Epworth House, because Epworth House does not overshadow Parramatta Square, nor do I accept that there is significant tension between realising the development potential under the development standards in LEP 2011 and compliance with the DCP control for overshadowing the protected area in Parramatta Square. 63. The site consists of three parcels of land; including the middle parcel of land containing the heritage listed Leigh Memorial Uniting Church. The cumulative volume of the concept proposal has been determined by reference to the FSR development standard of 8:1 applied the whole site area, including the parcel of land containing the Leigh Memorial Uniting Church. The so called tension has been created by unevenly distributing the majority of the volume, determined by reference to the FSR development standard applied to the whole site, into the Fellowship House building envelope. Consequently, the building envelope for Fellowship House occupies the majority of the eastern parcel (other than a small setback from the front boundary and the area to the south of the church) and extends for the full depth of the site to the maximum building height of 54m, with the potential to extend upwards under the design excellence clause (exhibit H). 64. Fellowship House is a building envelope that is much greater in volume than the building envelope anticipated by the development standards in LEP 2011, because the Fellowship House building envelope, considered in proportion to its own parcel of land, is significantly larger than the FSR development standard of 8:1 would have permitted. The volume of the Fellowship House building envelope contains the potential floor space conceptually allocated to the adjoining church site and part of the floor space allocated to the Epworth House site. 65. The development standards in LEP 2011 for the Fellowship House site anticipate a building of 54m (or greater under the design excellence clause), but do not anticipate a building 54m or greater for the full depth of the site, because the FSR development standard dictates a lesser volume. There is no necessary tension between the development standards for the site and the protection of the protected area in Parramatta Square from overshadowing, because considered together, they anticipate a building form which significantly reduces in height towards the rear of the site and potentially includes a rear setback. 66. The overshadowing of the protected area might only have been considered cumulatively for Epworth House and Fellowship House if Epworth House had forfeited some of its volume to avoid overshadowing Parramatta Square during the lunch period on the winter solstice, without transferring that volume to the Fellowship House building envelope. I do not accept the applicant's "cumulative shadow" argument because the floor space across the entire site is concentrated in the Fellowship House building envelope volume. Therefore it is appropriate to assess the amenity impacts associated with the Fellowship House building envelope objectively. 67. The overshadowing of part of the protected area of Parramatta Square by the Fellowship House building envelope during the lunch period on the winter solstice is excessive and contrary to the objective of cl 7.4 of LEP 2011 to protect public open space in Parramatta Square from overshadowing, because the volume of the Fellowship House building envelope fails to minimise overshadowing. I understand and appreciate the applicant's position that it is not the leading edge of the southern elevation of the Fellowship House building envelope that is causing the overshadowing impact on the protected area, as demonstrated by Figure 10 (exhibit 8, p 35) which shows the significantly reduced profile of the Fellowship House building envelope required to avoid overshadowing the protected area at all during the lunch period on the winter solstice. However, a more restrained building volume on the Fellowship House site would reduce the duration of overshadowing on part of the protected area of Parramatta Square during the lunch period on the winter solstice. 68. The overshadowing of a part of the protected area during the lunch period on the winter solstice is well beyond 45 minutes, particularly the portion of the protected area which forms the junction and focus of Parramatta Square and its intersection with Civic Link, which is contrary to the objectives for the Parramatta City Centre at 4.3.3 of DCP 2011. The overshadowing of part of this junction extends to the majority of the lunch period identified by the DCP control. 69. Clause 7.4 of LEP 2011 and the detailed objectives and controls of 4.3.3 of DCP 2011 seeking to protect solar access to Parramatta Square and to ensure building depth, bulk and separation protects amenity, dictate a significantly reduced building envelope for the Fellowship House site and there is no necessary tension between the DCP 2011 controls regarding overshadowing of public space and the development standards that apply to the site. 70. The site is a very constrained site, because it is in a conspicuous and important civic precinct; a future building on the Fellowship House site will project into the Civic Link and will be seen in the round; future buildings on the Epworth House and Fellowship House sites will have to respond appropriately to the heritage listed Leigh Memorial Uniting Church in the centre of the site; and a future building on the Fellowship House site will have to respond appropriately to the exuberant civic building to its south. It is, in my view, ambitious to expect to realise all of the floor space under the FSR development standard across the total site, because the conceptual volume of floor space associated with the parcel of land containing the church is transferred onto the adjoining Fellowship House site. The Fellowship House building form must be carefully and thoughtfully determined with reference to its context and articulated to genuinely minimise the overshadowing of the protected area. … 85. The fundamental issue in this matter is the overshadowing, and the duration of overshadowing, of a portion of the protected area of Parramatta Square during the lunch period on the winter solstice. The overshadowing of the protected area of Parramatta Square by the Fellowship House building envelope is excessive and contrary to the objective of cl 7.4 of LEP 2011 to protect public open space in Parramatta Square from overshadowing, because the volume of the Fellowship House building envelope fails to minimise overshadowing of the protected area."

The applicant's argument that the Commissioner's consideration was in error

The applicant contended that, in [64]-[67] of the judgment, the Commissioner erroneously interpreted and applied cl 4.4 of PLEP. In particular, the Commissioner purported to apply the FSR development standard to only part of the concept development application, being the proposed use and building envelope for Fellowship House.
The applicant submitted that the Commissioner applied cl 4.4 in an impermissible manner by artificially redefining the denominator (for the FSR calculation) or allocating site area to disparate parts of the site contrary to the provisions of PLEP.
The applicant submitted that the Commissioner considered the eastern allotment (119A Macquarie Street on which Fellowship House was proposed to be built) in isolation and as constituting the site area for the purpose of applying the FSR development standard to Fellowship House only. On that basis, the Commissioner determined that the building envelope for Fellowship House was greater than the FSR development standard permitted by cl 4.4 of PLEP. That determination was critical to the Commissioner's finding that the overshadowing was excessive, being the primary reason for refusal (as shown in [85] of the Commissioner's judgment).
The applicant noted that the Commissioner did not make any reference to cl 4.5 in PLEP in her judgment, but such clause was fundamental to the defined term "site area" in respect of which the FSR development standard related. The applicant submitted it should be inferred that the Commissioner failed to have regard to that provision at all or erroneously construed it.
The applicant submitted that cl 4.4 of PLEP provides for a maximum FSR for a building on any land. The concept of FSR referred to in that clause must be interpreted in the light of cl 4.5. That clause, in turn, provides for the calculation of FSR and site area. The relevant manner in which site area is to be calculated is that stipulated by cl 4.5(3).
The applicant noted that its concept development application sought consent for the carrying out of development in respect of the entirety of the site, that is to say, over each of the three contiguous lots (albeit that the carrying out of development in respect of the middle church allotment would be the subject of a later development application, as would the erection of new buildings on the eastern (Fellowship House) and western (Epworth House) allotments). The concept development application did not seek consent to carry out development on only one allotment. As such, site area is to be calculated by reference to cl 4.5(3)(b). In this case, the site area is, for the purpose of calculating FSR, the area of each of the three lots collectively.
The applicant submitted it was, therefore, an impermissible construction of cl 4.4 and cl 4.5 of PLEP to consider only the eastern allotment (119A Macquarie Street) as constituting the site area for the purpose of determining that there was an exceedance of the FSR development standard.
The applicant submitted that this error in construing and applying the FSR development standard materially affected the Commissioner's conclusion in [85] that the Fellowship House building envelope will cause excessive overshadowing of Parramatta Square.

The Council's argument that the Commissioner's consideration was not in error

The Council submitted that the applicant has misunderstood the Commissioner's reasoning: the Commissioner did not apply the FSR development standard in cl 4.4 of PLEP to only the Fellowship House land, rather than the whole site, and did not find that the FSR development standard was breached.
The Council noted that there was no dispute before the Commissioner that the concept proposals for the development of the site did not breach the FSR development standard in cl 4.4. When the site area had been calculated (which comprised the respective areas of the Epworth House land, the Fellowship House land, and the church land), the building envelope produced a total FSR across those three sites of 7.7:1, which approximated the volume commensurate with the 8:1 FSR development standard. The Commissioner accepted this evidence (at [58] of the judgment).
The Council submitted that the Commissioner used the FSR control to inform her planning merit assessment of the appropriateness of the bulk and scale of the Fellowship House building envelope, which was a central and principal contested issue in the proceedings (see contention 2). The Commissioner found that too much of the maximum available floor space had been allocated to the land on which the Fellowship House building envelope was proposed, and that this led to excessive overshadowing (at [65] of the judgment).
The Council submitted that the Commissioner did not separately determine and apply the FSR development standard in cl 4.4 for each building envelope on each respective allotment. Whilst it is true that the Commissioner observed that the Fellowship House building envelope, "considered in proportion to its own parcel of land" was "significantly larger than the FSR development standard of 8:1 would have permitted" (see at [64] of the judgment), it is plain from her judgment that the Commissioner was saying this in the context of her consideration of floor space and the consequent overshadowing impact of the building envelope under cl 7.4 of PLEP (at [67] and [69] of the judgment).
The Council submitted that at no time did the Commissioner consider "only the eastern allotment (119A Macquarie Street) as constituting the site area for the purposes of determining that there was an exceedance of the FSR development standard" as the applicant submitted. The Commissioner had in fact found that the FSR development standard was not breached (at [58] of the judgment). This was consistent with the parties' agreement before the Commissioner. That being so, it cannot be suggested that the Commissioner only considered the site area of one allotment for the purpose of determining compliance with the FSR development standard. Rather, as the Commissioner's reasons fairly disclose, the Commissioner expressed concern (which ultimately led to refusal of the application) that the amount of floor space allocated to the land occupied by the Fellowship House building envelope was not appropriate on its planning merits, because of the overshadowing impacts.

The Commissioner did not err in applying the FSR development standard in considering overshadowing

I reject the applicant's argument that the Commissioner erred in interpreting and applying the FSR development standard in cl 4.4 of PLEP in considering the overshadowing by the Fellowship House building envelope of Parramatta Square.
The Commissioner correctly identified and applied the FSR development standard to the whole site. She recognised that, notwithstanding the 15% additional volume of the Fellowship House building envelope to take advantage of the bonus in the design excellence clause (cl 7.10(8) of PLEP), the building envelopes for the concept proposals "represent the approximate volume commensurate with the 8:1 FSR development standard for the site" (at [58] of the judgment). The Commissioner's discussion in [64]-[67] of the judgment is not to the contrary and does not establish that the Commissioner misapplied the FSR development standard to only the Fellowship House land.
The Commissioner in [64]-[67] of the judgment was explaining how and why the additional volume of the Fellowship House building envelope, proposed by the applicant to take advantage of the design excellence clause bonus, led to greater overshadowing of Parramatta Square, contrary to the objective of cl 7.4 of PLEP and the DCP controls seeking to protect Parramatta Square from excessive overshadowing.
The Commissioner was also addressing the applicant's planner's argument that the overshadowing of Parramatta Square should be considered cumulatively, in the sense that the overshadowing of Parramatta Square by the Fellowship House building envelope is balanced by the lack of overshadowing of Parramatta Square by the Epworth House building envelope, and the argument that there is a significant tension between realising the development potential under the development standards in PLEP and compliance with the DCP control for overshadowing of Parramatta Square (at [62] of the judgment). The Commissioner did not accept either of these arguments and explained her reasoning in [63]-[70] of the judgment.
The Commissioner found that the amenity impacts associated with the Fellowship House building envelope overshadowing Parramatta Square needed to be assessed objectively and separately, rather than assessing the cumulative effect of the overshadowing of Parramatta Square by Epworth House and Fellowship House (at [66] in particular). The Commissioner carried out that objective assessment of the overshadowing of Parramatta Square by the Fellowship House building envelope.
The Commissioner found that there was no necessary tension between the development standards for the site in PLEP and the DCP controls relating to overshadowing of the public open space of Parramatta Square (at [65] and [69] in particular). The Commissioner found that cl 7.4 of PLEP and the DCP controls seeking to protect solar access to Parramatta Square dictated a significantly reduced building envelope for the Fellowship House site (at [69] of the judgment). The Commissioner's statement in [64] of the judgment concerning the floor space of the Fellowship House building envelope needs to be read in this context.
The applicant has, therefore, not established that the Commissioner misinterpreted or misapplied the FSR development standard in making her findings that the overshadowing of Parramatta Square by the Fellowship House building envelope was excessive and contrary to the objective of cl 7.4 of PLEP and the DCP controls seeking to protect solar access to Parramatta Square.
Ground 2 is not established.

No denial of procedural fairness in relation to the FSR development standard

The applicant's third ground of appeal was that the Commissioner denied the applicant procedural fairness by not giving it an opportunity to be heard concerning the Commissioner's finding that the Fellowship House building envelope breached the FSR development standard. This ground was dependent on the applicant establishing that the Commissioner did in fact find that the Fellowship House building envelope breached the FSR development standard. I have held, in dealing with ground 2, that the Commissioner did not find that the Fellowship House building envelope would breach the FSR development standard in PLEP.
Ground 3 is, therefore, not established.

The alleged failure to consider the public and social benefits of the proposal

The Commissioner's addressing of the social benefits

The applicant emphasised, in its concept development application and in its evidence before the Commissioner, the social benefits that might be realised by the proposed redevelopment of the site. The applicant argued that the social benefits counter balanced the impacts of the proposed development, including the amenity impacts caused by the overshadowing of the public open space of Parramatta Square.
The statement of environmental effects that accompanied the concept development application described the benefits of the proposed development as follows: "Parramatta Mission is seeking to redevelop their premises in the Parramatta CBD to expand and improve their facilities and services on the site. As outlined in Appendix C, the Mission are aiming to develop a new program called InSpiring the Common Good. The program will use evidence based models to bring together people, including those with mental health issues and those who are homeless and people on low incomes, in a residential complex which provides self-contained apartments and communal spaces as well as office space for case management and support services, financial counselling and a range of social and living skills activities. Once project debt has been repaid from the sale of apartments, it is anticipated that new facilities and revenue streams from leasing commercial premises will be reinvested into community services and addressing the common good. The proposed development will allow the Mission to provide certainty for the provision of future services with a reduced reliance on Government grants allowing greater autonomy in the range of services provided." (p 22)
The proposal was further described in the social impacts statement accompanying the concept development application: "The Common Ground model provides a range of accommodation options both on site and in the community, predominately self-contained studio apartments, but also one and two bedroom apartments. These accommodation options may be offered as affordable housing, social housing or housing designated for those who have experienced long term homelessness. The success of this model is enhanced by the wrap around services for the residents, providing direct and integrated linkages to health, social supports, counselling and drug and alcohol services, thus supporting people with complex needs." (p 2)
Reverend Keith Hamilton, the Senior Minister and CEO of the Parramatta Mission, gave evidence at the hearing before the Commissioner about the Parramatta Mission, its purpose and work, and the benefits of redevelopment of the site. He said: "- The redevelopment of the site will allow the Mission to expand and improve their facilities while providing an ongoing source of income to be invested into social welfare projects within the Parramatta region. Sources of independent revenue for the Mission will allow greater autonomy in the provision of social services and ensure the ongoing operation of the organisation in the centre of Parramatta. - The ability to assist, include and walk beside the increasing vulnerable people in society is dependent upon increasing the material resources of the Mission. - This project will increase the capacity of the Mission to assist more people. - Despite the range of services provided by both Parramatta Mission and Council, homelessness in Parramatta is increasing and the Mission are constantly faced with shortages in the services they are able to provide, as the organisation relies heavily on funding from Government grants. - Parramatta Mission is seeking to redevelop the site to expand and improve their facilities and services on the site. - The Mission are aiming to develop a new program called InSpiring the Common Good. The program will use evidence based models to bring together people, including those with mental health issues and those who are homeless and people on low incomes, including emergency overnight accommodation, as well as office space for case management and support services, financial counselling and a range of social and living skills activities. - Once project debt has been repaid from the sale of apartments, it is anticipated that new facilities and revenue streams from leasing commercial premises will be reinvested into community services and addressing the common good. The proposed development will allow the Mission to provide certainty for the provision of future services with a reduced reliance on Government grants allowing a greater autonomy in the range of services provided. - The proposed redevelopment will assist the Mission to expand its services, to introduce innovative programs such as a social enterprise café to provide employment training and skills development."
The applicant's planner, Ms Swan, gave evidence about the public benefits of the proposed development and how they should be taken into consideration in assessing the impact of overshadowing of Parramatta Square: "As outlined in Statement of Environmental Effects (July 2017), the development of the site is being undertaken by Parramatta Mission to enable them to continue providing social welfare services to socially disadvantaged people in the Parramatta community. The building envelope proposed for the Fellowship House site will provide revenue to the Mission through the sale of residential dwellings that will allow them to retire project debt and continue operations on the site within the centre of Parramatta and provide critical ongoing support services to the community and result in a forum for Parramatta Council to provide care to the community. The public benefit of the proposed development is therefore an inherent and significant consideration in assessing the impact of the DCP overshadowing variance. In this regard, the overshadowing of the public domain is an impact of a taller building envelope on the site (that is within the allowable LEP height control) and that is necessary to provide ongoing funding for Parramatta Mission. The development is also substantially lower in scale in any event compared to other Parramatta CBD and Parramatta Square sites in proximity to the station (refer Figure 11 over page). The Fellowship House building envelope will invest into charitable purposes for the greater good of the community. In the LEC case of The Benevolent Society v Waverley Council [2010] NSWLEC 1082, Moore SC considered the social values of a project that is significantly in the public interest warrants going a little beyond the controls that would be applicable if the DCP were to apply…" (para 95 of the Joint Town Planning Expert's Report).
The applicant also contended that the proposed restorative heritage works, and in particular, the construction of the church spire, were identified as a benefit arising from the concept development application. A joint expert report on heritage was tendered and admitted without objection. The evidence before the Court was that both the parties' heritage experts were of the opinion that "the proposed reconstruction of the spire on the church produces an excellent heritage outcome".
The applicant submitted before the Commissioner that the public benefits of the proposed development are matters to be taken into account in the public interest and weighed against the detrimental impacts of the proposed development's overshadowing of Parramatta Square. The applicant relied on the decision of the then Senior Commissioner in The Benevolent Society v Waverley Council [2010] NSWLEC 1082 that: "the positive social benefits of a proposal…are…appropriate to be taken into account" (at [102]). In that case, the Senior Commissioner considered that "the social value of the 'ageing in place' philosophy that underpins the Society's proposed development…is an element of significant public interest that warrants going a little beyond the controls that would be applicable if the DCP were to apply" (at [100]).
The applicant's senior counsel in this case submitted orally in closing submissions before the Commissioner that: "I think the highest I can appropriately put it is that the Court would recognise that a public benefit derived from development is a matter which is appropriately taken into consideration of the public interest associated with whether or not it is reasonable to require strict compliance with the control. In other words, the reasons why or the effect of the non-compliance can be balanced by reference to effect on the general public and benefit to the general public arising out of the development…It is perhaps to say that the Court would be cautious of the weight which it would put upon public benefit when it reaches the conclusion…that it is to be accepted that the Parish Mission Uniting Church being a non-profit organisation provides these services and that the Court can readily accept that services of this type are in much need in our community. I don't think I can take that matter any further. It is not determinative, but it is part of the basket of matters which can be placed into the overall consideration which we say would lead in this case to an approval which permits the exceedance of the 45 minute control in the manner in which we have identified." (T 06/03/18 p 24)
The Council submitted before the Commissioner that the public benefits of the proposed development were not a good reason to depart from the controls in PLEP and the DCP. The Council responded to the applicant's argument that weight should be given to the fact that funds generated from the development will be used to provide community outcomes or projects that are undertaken by the Parramatta Mission. The Council's solicitor submitted orally in closing submissions that "that particular matter should be given little or no weight for at least three reasons". The first reason was that "the concept proposal is for buildings that would accommodate commercial and residential development. There is nothing inherent in the development itself that is proposed to suggest that is has some special social benefit." Secondly, "there are no provisions in any instrument or control that allow a concession from the overshadowing or other provisions on the basis that the development may be carried out or is proposed to be carried out by a charitable institution." Thirdly, "there is absolutely no evidence in relation to the quantum of development that is needed to finance the community activities of the church or, to use the words of Senior Commissioner Moore as he then was in the Benevolent case, the trigger point of where you might decide that this is not viable or viable." (T 06/03/18 pp 35-36)
The Commissioner addressed the applicant's argument that the social benefits of the concept proposals for the development of the site should be taken into consideration in assessing the amenity impacts of the proposal. The Commissioner summarised the evidence of the social benefits of the proposal, including the evidence of Reverend Hamilton (at [36] and [37] of the judgment). The Commissioner considered the debate between the applicant and the Council of "whether weight should be given to the social benefit of the proposal" (the heading before [38] of the judgment). The Commissioner addressed the applicant's argument in [38]-[42] of the judgment: "38. The applicant submits that the social benefit arising from this project should be taken into consideration in assessing any amenity impacts caused by the proposal (The Benevolent Society v Waverley Council [2010] NSWLEC 1082 [222]). 39. The application is for a concept building envelope and any development consent granted runs with the land and not the proponent. The site, or part of the site, could be sold with development consent for a concept proposal to a new owner who develops the land for the same broadly consistent purpose but without the social agenda; or the site could be developed and the development sold, resulting in the proponent being no different to any other developer. If either of these scenarios occurred, the additional built form volume that may have been permitted on the basis of the social benefit arising from the project would be retained in perpetuity, but the social benefit would be lost. 40. The future city is a three dimensional design made up of built form and urban space. Ideally, the development standards applicable to a site reflect the master plan for the desired future form of the city, where trade-offs resulting from benefits and impacts have been considered. The design of the city is, to some extent, undermined by arbitrary decisions to significantly exceed individual building envelopes in exchange for a perceived social benefit that may only be short-term. 41. A bonus in the form of additional volume for a building envelope for certain development held to be in the public interest is fundamentally a matter for government policy. An example of such a policy is the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) where a floor space bonus is available to a proponent as an incentive for providing a component of infill affordable housing, but is only available where a number of other constraints and requirements, consistent with the policy objectives, are met by the proposal. Importantly, a policy such as SEPP ARH for bonus floor space can be applied consistently and transparently across applications and the public benefit in the form of affordable housing is certain, because it is imposed on the approved development by condition. 42. It is not, in my view, appropriate for me to usurp the role of policy making and make an ad-hoc assessment of what it is or is not in the public interest in terms of public benefit arising from the future use of a concept proposal. I do not accept that this proponent or their particular brief for the future use of buildings on this site are relevant considerations falling within matters arising from the broad public interest under s 4.15(1)(e) of the EPA Act."

The applicant's argument that the Commissioner failed to consider the social benefits

The applicant submitted that, although the Commissioner purported to address its argument that the social benefits of the proposal should be taken into consideration in assessing the impacts of the proposal, the Commissioner nevertheless determined that the social benefits of the proposal were not a relevant consideration for the purpose of s 4.15 of the EPA Act. The applicant submitted that this is clear from [42] of the judgment and the terms of the heading to the discussion before [38] ("whether weight should be given" rather than "what weight should be given").
The applicant submitted that the Commissioner was in error in concluding that the social benefits of the proposal were not a relevant consideration. The applicant submitted that the social benefits of the proposal were an element of the public interest which is a relevant matter under s 4.15(1)(e) of the EPA Act. The requirement that regard be had to the public interest operates at a high level of generality and the range of matters that may be relevant is broad, citing Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [299]. The ambit of the head of consideration of the "public interest" must be informed by the subject matter, scope and purpose of the EPA Act. That includes the promotion of the social and economic welfare of the community by the proper management, development and conservation of the State's natural and other resources and also the promotion of the orderly and economic use and development of land (s 1.3(a), (c) of the EPA Act). In this case, the relevant resources are urban land and heritage. The concept development application seeks to promote both this social and economic welfare of the community by its development and management of the site, being a limited urban land resource. Moreover, it seeks to conserve the State's heritage resources by retaining the heritage listed church and reconstructing its spire.
The applicant noted that the Court in hearing the appeal had to consider the public interest under s 39(4) of the Court Act.
The applicant relied on three decisions of the former Senior Commissioner in which he identified the public benefits of the proposed developments in those cases and, in two of the cases, used them to offset the negative impacts of the proposed development: Walton v Blacktown City Council [2009] NSWLEC 1040 at [72]; The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at [96]-[102]; and Brindley v Parramatta City Council [2014] NSWLEC 1193 at [24], [25] and [31].
In oral argument, the applicant added another way in which it said the Commissioner was required to consider the social benefits of the proposal. The function that the Commissioner was exercising was to determine the applicant's concept development application. That application was accompanied by a statement of environmental effects. That statement described the social benefits of the proposal and argued that these social benefits warranted a variation of the DCP controls concerning overshadowing of Parramatta Square. The Commissioner was required to consider the statements and arguments in the statement of environmental effects. These were made relevant considerations by the statutory requirement to consider and determine the development application and accompanying documents.
The applicant also put another argument as to how the Commissioner erred in her addressing of the social benefits of the proposal. The applicant submitted that the Commissioner erred in failing to consider that the social benefits of the proposal could be preserved by way of imposition of conditions of consent. In particular, the Commissioner proceeded on the basis that the social benefits may only be short term (at [40] of the judgment) and would be lost in the event that the site was sold (at [39] of the judgment). The Commissioner failed to appreciate that the social benefits relied upon by the applicant could be subject to appropriate conditions of consent, under s 4.17(1)(a) of the EPA Act.
The applicant noted that this is a conventional mechanism specifically identified in other environmental planning instruments, such as State Environmental Planning Policy (Affordable Rental Housing), cl 17 and State Environmental Planning Policy (Housing for Seniors or People with a Disability), cl 18. The applicant submitted that the existence of such mechanisms in other environmental planning instruments, but not in PLEP, was presumably what the Commissioner was averting to at [42] in terms of "policy making".
The applicant submitted, however, that the availability of the mechanism to impose conditions does not depend upon provisions such as those identified in the State Environmental Planning Policies identified above. The power to impose conditions derives from s 4.17 of the EPA Act. Provided the aspect being considered relates back to s 4.15(1) (which in terms of the public interest it does), then the power to impose a condition is engaged under s 4.17(1)(a) of the EPA Act. That does not depend upon the exercise of a "policy making" process and hence, to the extent that [42] of the Commissioner's judgment expresses a limitation upon the condition making power, it was wrong.

The Council's argument that the Commissioner did consider the social benefits

The Council firstly submitted that the Commissioner did consider both the social benefits of the proposal and the applicant's argument that the social benefits should be considered in assessing the impacts of the proposal. That consideration was evidenced at the hearing, where the Commissioner engaged in discussion with the applicant's senior counsel during his submissions that the social benefits of the proposal offset the impacts of the proposal, particularly the overshadowing of Parramatta Square. The consideration is also evidenced by the Commissioner's reasons for judgment. The Commissioner summarised the social benefits of the proposal asserted by the applicant (at [36] and [37] of the judgment) and the applicant's argument that those social benefits offset the amenity impacts of the proposal (at [38]). The Commissioner gave reasons why she did not agree with the applicant's argument (at [39]-[42]). The Council submitted, therefore, that the applicant's argument fails on the facts: the Commissioner did consider the social benefits of the proposal.
Secondly, the Council disputed the applicant's argument that the Commissioner's reasons should be read as holding that the social benefits of the proposal were not a relevant matter to be considered. The Council submitted that the Commissioner should be understood as saying that no weight should be given to the social benefits of the proposal, not that it was not a relevant consideration. The Council referred to the parties' respective submissions at the hearing before the Commissioner, which turned on the weight that should be given to the social benefits of the proposal. The applicant had argued that considerable weight should be given, but the Council had argued that no or little weight should be given. The Commissioner's heading to her discussion of the social benefits of the proposal was no doubt informed by that debate on the weight to be given to the social benefits of the proposal. The Commissioner's reasons can be read as reasons for giving no weight to the social benefits of the proposal. For example, the Commissioner's reason in [40] that the design of the city, framed by the development standards and controls, would be undermined by arbitrary decisions to significantly exceed building envelopes, dictated by those standards and controls, in exchange for a perceived social benefit that may only be short term, explains why no weight should be given to the social benefits of the proposal.
Thirdly, the Council submitted that the relevant matter to be considered is "the public interest" under s 4.15(1)(e) of the EPA Act and s 39(4) of the Court Act; it is not the social benefits of the proposals. The Council submitted that the Commissioner was not bound by either statutory provision to consider the public and social benefits of the types argued by the applicant in order to properly discharge the obligation to consider the public interest. The Council cited the statement in Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 at [58] that: "It is not for a party affected by a decision, or a reviewing court, to make an exhaustive list of the matters which a decision maker might conceivably regard as relevant then attack the decision on the ground that a particular one of them was not specifically taken into account". The Council submitted that neither s 4.15(1)(e) of the EPA Act nor s 39(4) of the Court Act expressly or impliedly obliged the Commissioner to enquire and consider the public interest at the level of particularity involved in the applicant's submissions: Walsh v Parramatta City Council at [60]; Pittwater Council v Minister for Planning (2011) 184 LGERA 419; [2011] NSWLEC 162 at [141].
The Council submitted that the Commissioner did consider the public interest in accordance with her obligation. The Commissioner found that the proposed Fellowship House building envelope was "excessive" and contrary to the objective of cl 7.4 to "protect public open space in Parramatta Square from overshadowing" (at [85] of the judgment) and that the building envelope "detrimentally impacts on the amenity of the public domain in Parramatta Square" (at [86] of the judgment).
There was no obligation on the Commissioner to consider each and every one of the asserted public and social benefits which the applicant contended could result in the Commissioner assessing the proposal favourably. The Council submitted it was understandable why the Commissioner considered that those matters were inappropriate in the merit assessment of the application, because they related to matters of broad public policy, being a domain in respect of which the Court has no role.
The Council submitted that, in truth, the applicant's concern is with the weight the Commissioner gave to the public interest "particulars" that it now identifies. There can be no challenge to weight. The fact that the Commissioner was considering the "social benefit" and determining what weight to give it is clearly signposted by the heading before [38] of the judgment.
As to the applicant's second argument, the Council submitted that the fatal flaw in the argument is that the applicant never put to the Commissioner that there was an option available to her to impose a condition of the type of which the applicant now argues should have been imposed. There is no obligation on a Commissioner to consider a matter in respect of which no contention was raised, no evidence was given, and no submission was made. The applicant is bound by the way it ran its case before the Commissioner.
In any event, the Council submitted that there was no obligation on the Commissioner to consider the imposition of a condition of consent guaranteeing the social benefits of the proposal. It is not sufficient, in order for the applicant to succeed on this argument, that the Commissioner might have had power to do so, there had to be an obligation to do so. But there was no such obligation.

The Commissioner did not fail to consider a relevant matter

To succeed on this ground of failure to consider a relevant matter, the applicant must establish that the particular social benefits of the concept proposals for the development of the site asserted by the applicant were matters that the Commissioner was bound to consider in the exercise of the statutory power under s 4.16 of the EPA Act to determine the applicant's concept development application.
The matters the Commissioner was bound to consider in exercising that statutory power are to be determined by construction of the statute conferring the power, namely the EPA Act. The Court would not find that the Commissioner was bound to consider a particular matter unless the EPA Act, expressly or by implication from the subject matter, scope and purpose of the EPA Act, required the Commissioner to consider that matter, or matters of that kind, as a condition of exercising the power to determine the concept development application: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, 55-56; [1986] HCA 40.
The matters that are relevant to the Commissioner's function of determining the concept development application are to be identified primarily, perhaps even entirely, by reference to the EPA Act, rather than the particular facts of the case the Commissioner was called upon to consider: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [73]. The ground of failure to consider a relevant matter is concerned essentially with whether the Commissioner has properly applied the law, not with the process of making the particular findings of fact upon which the Commissioner acted: Minister for Immigration and Multicultural Affairs v Yusuf at [74].
As I said in Walsh v Parramatta City Council at [60]: "The level of particularity with which a matter is identified in the statute may be significant where the failure complained of is not a failure to consider a certain subject matter, but a failure to make some inquiry about facts said to be relevant to that subject matter. For the applicant to succeed, the statute must expressly or impliedly oblige the decision-maker to enquire and consider the subject matter at the level of particularity involved in the applicant's submission: Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [23]."
In this case, s 4.15(1)(e) of the EPA Act required the Commissioner, exercising the functions of the consent authority to determine the concept development application, to take into consideration "the public interest". As noted in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc at [299]: "A requirement that regard be had to the public interest operates at a high level of generality. What is involved in the determination of the public interest in a given statutory context was explained in O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216 where the High Court stated: "[T]he expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'." (citation omitted) See also McKinnon v Secretary, Department of Treasury [2006] HCA 45; 228 CLR 423 at [55]; Osland v Secretary to Department of Justice [2008] HCA 37; 234 CLR 275 at [57] per Kirby J and [137] per Hayne J; Osland v Secretary to Department of Justice [No 2] [2010] HCA 24; 241 CLR 320 at [13] per French CJ, Gummow and Bell JJ; Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505. As observed in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) at [42], the range of matters relevant to the public interest is very wide."
The applicant did not contend that the Commissioner failed to take into consideration the relevant matter of the public interest (under s 4.15(1)(e) of the EPA Act and s 39(4) of the Court Act) in her determination of the concept development application. The Commissioner clearly did so.
Rather, the applicant contended that the Commissioner failed to have regard to the particular factual matters concerning the social benefits that might result from the redevelopment of the site in the ways proposed by the applicant. The applicant contended that these particular factual matters are elements of the public interest in the circumstances of this case. Amongst the social benefits claimed by the applicant were that parts of the new buildings, which might be approved by consents granted to subsequent development applications, could be used to provide social welfare services to socially disadvantaged people and that sale of the residential and commercial space in the new buildings would yield funds for the Parramatta Mission's work for charitable purposes for the greater good of the community. These social benefits would not be directly provided by granting consent to the concept development application, but only by erecting and using the new buildings approved by the consents granted to subsequent development applications.
The crucial question in these s 56A appeal proceedings is whether the Commissioner, exercising the power of the consent authority to determine the applicant's concept development application, was bound to take into consideration the social benefits that might flow from the erection and use of new buildings in accordance with consents granted to subsequent development applications. I do not discern from the statute conferring the power that consideration of these potential social benefits was mandatory.
Whilst consideration of potential social benefits might be permissible, they are not matters which the consent authority is bound to take into account in order for there to be a valid exercise of the power in s 4.16 of the EPA Act to determine the development application. The EPA Act neither expressly nor by implication from the subject matter, scope and purpose of the EPA Act makes consideration of the potential social benefits claimed by the applicant a condition of the valid exercise of the power to determine the concept development application. In short, they are not relevant matters that the Commissioner was bound to consider.
The Commissioner found in [42] that "this proponent or their particular brief for the future use of buildings on this site are not relevant considerations falling within the broad public interest under s 4.15(1)(e) of the EPA Act." The matter of "this proponent" is a reference to the identity of the particular applicant as a church organisation working for charitable purposes. The Commissioner no doubt had in contemplation the well known distinction made in planning law between the user and the use of the land. As was said in Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293: "although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor."
The matter of "their particular brief for the future use of buildings on this site" is a reference to the proposed use of parts of the new buildings that might be erected pursuant to consents granted to subsequent development applications to carry out the Mission's work for charitable purposes, but could also refer to the proposal to sell residential and commercial space in the new buildings to raise funds for the Mission's activities.
The Commissioner found that none of these matters was a relevant consideration that the Commissioner was bound to take into account under s 4.15 of the EPA Act when determining the applicant's concept development application. For the reasons I have given, this finding was correct: the EPA Act neither expressly nor by implication required the Commissioner to take into consideration those particular matters.
This is not to say, however, that the Commissioner could not have taken those matters into consideration if she had chosen to do so. The particular matters were not extraneous to the public interest under s 4.15(1)(e) of the EPA Act; they were not irrelevant matters that the Commissioner was bound to ignore. The EPA Act neither expressly nor by implication limits the factual matters to which the consent authority may legitimately have regard in considering the public interest so as to exclude the potential social benefits advanced by the applicant: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 40.
The requirement that regard be had to the public interest operates at a high level of generality. The range of matters that might be relevant to the public interest is very wide. As explained in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 at [42], "when used in a statute, the expression 'public interest' imports a discretionary value judgment to be made by reference to undefined factual matters". The legislature has left to the consent authority the discretion to decide what factual matters are or are not in the public interest in the circumstances of the particular development application to be determined.
If the Commissioner, exercising the function of the consent authority, was permitted but not required to have regard to the potential social benefits advanced by the applicant in determining the concept development application, she did not commit an error of law by not having regard to the potential social benefits. As Basten JA observed in Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7 at [34]: "When a statutory provision permits a decision-maker to have regard to particular material, but does not mandate it, a complaint that the decision-maker did not have regard to that material will not usually identify an error of law."
In these circumstances, the Commissioner did not err in law in deciding not to have regard to the potential social benefits.
The applicant referred to three decisions of the former Senior Commissioner in Walton v Blacktown City Council, The Benevolent Society v Waverley Council and Brindley v Parramatta City Council. Those decisions merely illustrate that a different Commissioner exercising the function of a consent authority to determine different development applications for different developments, made a different value judgment about what was in the public interest by reference to different factual matters. The then Senior Commissioner considered that the particular social benefits that would be provided by the carrying out of the developments proposed in those cases should be considered as part of the public interest.
The fact that regard was had to social benefits in those cases does not, however, affect the conclusion that the Commissioner in the present case was not bound in law to consider the potential social benefits advanced by the applicant in determining the applicant's concept development application.
I also reject the applicant's second argument that the potential social benefits are relevant matters because they were advanced in the statement of environmental effects accompanying the concept development application that the Commissioner was required to consider and determine. Whilst the Commissioner was obliged under s 4.15 and s 4.16 of the EPA Act to consider and determine the applicant's concept development application and accompanying documents (including the statement of environmental effects), this does not make every statement of fact or opinion in those documents a relevant matter that the Commissioner was bound in law to consider as a condition of the valid exercise of the power to determine the application.
Ground 4(a) of failure to consider a relevant matter is not established.
I also reject the applicant's other ground that the Commissioner erred by failing to consider imposing conditions to preserve the social benefits that might be provided by the redevelopment of the site. As the Council submitted, the applicant is bound by the case it ran before the Commissioner. The applicant never asked the Commissioner to impose conditions of consent to preserve the social benefits of the proposal. The applicant had every opportunity to have done so.
During the applicant's closing submissions, the Commissioner raised her concern about balancing the social benefits of the project against the impacts of the project. The Commissioner said it is "really a matter for government policy" and "not an ad hoc decision making role for the Court to do". The Commissioner contrasted this ad hoc approach with the approach to "the affordable rental housing sector, for example, which has the bonus FSR provision, there's a lot of requirements and constraints on achieving that additional floor space and then there's conditions requiring it to be there for ten years and so forth. It's a matter where that policy has been quite well developed and it's applied consistently to applications across the State." (T 06/03/18 p 24) In this statement, the Commissioner specifically drew the applicant's attention to the ability to impose conditions requiring the affordable rental housing to be preserved. This should have alerted the applicant to the idea of asking the Commissioner to impose a condition of consent to preserve the social benefits in the present case. But the applicant did not ask the Commissioner to do so.
In these circumstances, the applicant cannot now complain that the Commissioner did not consider imposing a condition of consent to preserve the social benefits of the concept proposals for the development of the site. As the Council submitted, there can be no obligation on the Commissioner to consider a matter in respect of which no contention was raised, no evidence was given, and no submission was made.
The applicant is bound by the forensic decisions it made at and in the conduct of the hearing before the Commissioner: The Owners - Strata Plan No 70798 v Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513; [2014] NSWCA 410 at [90]; TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [162], [163]. As the High Court said in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28 at 483: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." See also Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at 7, 11 and Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [47]-[55].
Ground 4(b) of failure to consider imposing a condition to preserve the social benefits of the proposal is not established.

No denial of procedural fairness by not considering the social benefits

The fifth ground raised by the applicant was that the Commissioner did not give notice to the applicant that she would find, as she did find in [42] of the judgment, that the social benefits of the proposal were not relevant considerations falling within matters arising from the broad public interest under s 4.15(1)(e) of the EPA Act. The applicant submitted that it had proceeded on the basis that the social benefits of the proposal would be taken into account by the Court as an element of the public interest pursuant to s 4.15(1)(e) of the EPA Act. The applicant submitted that if the Commissioner had a concern that the social benefits of the proposal were not relevant considerations, "it was incumbent upon the Commissioner to squarely raise that matter with the parties". The Commissioner did not do so. The Commissioner thereafter determined that the social benefits of the proposal were not relevant considerations. In proceeding in that manner, the Commissioner denied the applicant procedural fairness.
The Council rejected the applicant's argument that a Commissioner of the Court is required to put litigants on notice of matters that would not be considered relevant to his or her final decision. The Council submitted that a decision maker, such as a Commissioner or a Judge, has no obligation to give parties advance notice of what they may find relevant or irrelevant in making their decision. Rather, the obligation of the Commissioner or the Judge is to give the litigants a fair opportunity to be heard on the principal contested issues in the case, and to decide those issues in a manner supported by adequate reasons.
The Council submitted that, in any event, the Commissioner did give the applicant the opportunity to be heard on the topic of the social benefits of the proposal. The applicant adduced evidence on the social benefits in its statement of environmental effects, social impacts statement, the evidence of Reverend Hamilton, and the evidence of the applicant's town planner Ms Swan. The applicant addressed, in its submissions to the Commissioner, the social benefits of the proposal and how they should be used in the assessment of the concept proposals for the development of the site.
The Commissioner engaged in discussion with the applicant's senior counsel in closing submissions about the applicant's argument that the social benefits of the proposal justified the exceedance of the DCP control on overshadowing of Parramatta Square. The discussion concluded with the Commissioner saying to the applicant's senior counsel: "I must say, I'm very clear on that aspect of your submission. I'm not hanging a lot on it. I'm just interested in the submissions…giving any weight to a perceived public benefit." (T 06/03/18 pp 24-25)
The Council submitted that the applicant should have been on notice from this comment of the Commissioner that the applicant's arguments on the social benefits of the proposal were likely to feature very little in the Commissioner's merit assessment of the proposal. Yet the applicant did not address the topic any further, either in its submissions in chief or submissions in reply. In these circumstances, the Council submitted that the Commissioner did not deny the applicant procedural fairness.
I agree with the Council's submission that the Commissioner did not deny the applicant procedural fairness. The applicant had every opportunity to lead evidence and make submissions on the social benefits of the proposal and it availed itself of that opportunity to do both. In particular, the applicant made submissions that the social benefits of the proposal were elements of the public interest under s 4.15(1)(e) of the EPA Act, which should be balanced against the impacts of the proposal, including the overshadowing of Parramatta Square.
The Commissioner was under no obligation to warn the applicant that she might not accept the applicant's arguments, including that she might find that the social benefits of the proposal were not relevant considerations that she was bound to take into account under s 4.15 of the EPA Act. The Commissioner was under an obligation to determine the matter on the basis of the principal contested issues, and not on the basis of an issue not raised or argued in the proceedings, but the Commissioner was not under an obligation to give the applicant advance notice of how she might decide the principal contested issues.
The Commissioner did not deny the applicant procedural fairness by not warning the applicant that she might decide that the potential social benefits of the redevelopment of the site claimed by the applicant were not relevant considerations under s 4.15(1)(e) of the EPA Act. Ground 5 is not established.

Conclusion and orders

The applicant has not established any of the grounds of appeal. The appeal should be dismissed. The applicant should pay the Council's costs of the appeal.
The Court orders: 1. The appeal is dismissed. 2. The applicant is to pay the respondent's costs of the appeal.

Amendments 24 August 2020 - Correction at [133] to type of proceedings. 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: 24 August 2020

unal: Land and Environment Court Jurisdiction: Class 1 Citation: [2018] NSWLEC 1129 Date of Decision: 13 March 2018 Before: O'Neill C File Number(s): 2017/183377

(2017) 222 LGERA 286

(2007) 161 LGERA 118

(2011) 184 LGERA 419

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Cases Cited (35)

Cited By (15)