Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1650 | Case summary

Land and Environment Court (NSW)|2020-12-14

Solicitors: EA Legal (Applicant) The Council of the City of Sydney (First Respondent) Lindsay Taylor Lawyers (Second Respondent) Mills Oakley (Third Respondent) King and Wood Mallesons (Fourth Respondent)

Proceedings 2020/283450 Counsel: G Wee (Solicitor) (Applicant) M Mallos (Solicitor) (First Respondent) M Harker (Solicitor) (Second Respondent)

Solicitors: EA Legal (Applicant) The Council of the City of Sydney (First Respondent) Lindsay Taylor Lawyers (Second Respondent) File Number(s): 2020/165316; 2020/283450 Publication restriction: No

Judgment

COMMISSIONER: Two appeals concerning modification applications have been lodged by Toplace Pty Ltd ("Toplace") concerning development consents that relate to land at 67-77 Epsom Road, Rosebery ("the site"). Toplace has carried out development on the site pursuant to a concept consent granted 30 July 2010 identified as D/2008/102 ("concept consent"), and a subsequent detailed development consent for what is known as Building A identified as D/2015/624 ("detailed consent"). Immediately adjacent to the site is the intersection of Link and Epsom Roads. Condition 17 of the concept consent, and condition 28 of the detailed consent, each require works to upgrade the intersection to signalised traffic lights to be carried out prior to the issue of any occupation certificate. These two proceedings concern appeals against the deemed refusal of two modification applications made by Toplace to the Council of the City of Sydney ("the Council") to modify those conditions. The final orders in each appeal, outlined in [15]-[16] below, are made as a result of agreements between the parties that were reached at a conciliation conference.
The appeal concerning the modification of the conditions of the concept consent is proceedings number 2020/283450, and the appeal concerning the modification of the conditions of the detailed consent is proceedings number 2020/165316. The appeals are lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). The second respondent, Transport for New South Wales ("TNSW") appears in the proceedings pursuant to its legislative right under s 64(1) of the Land and Environment Court Act 1979 ("LEC Act"). In 2020/165316, Hifu Investment Pty Ltd ("Hifu") and The Warehouse Pty Ltd ("Warehouse") were added as the third and fourth respondent respectively by Moore J in Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 121.

The previous application

An application to modify condition 28 of the detailed consent was previously before the Court in Toplace Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1222 (proceedings number 2019/273128). However, that modification application was made pursuant to s 4.55(1A) of the EPA Act, and the power to modify a consent under s 4.55(1A) can only be exercised if the modification has "minimal environmental impact". I presided in the hearing of that appeal, and found that I could not be satisfied that the modification had minimal environmental impact (see [48]-[63]). As this was a requirement of the statutory provision, the appeal was dismissed.
The present modification applications are instead made pursuant to s 4.55(2) of the EPA Act, which is a provision that is facultative of more substantial modifications to development consents.

The relationship between the parties

Hifu is the developer of a site at 1-5 Link Road, and Warehouse is the developer of a site at 87-103 Epson Road. Both of these sites are also adjacent to the intersection of Epson and Link Roads. Toplace's development, known as Building A, is a mixed use development containing 266 residential dwelling units, 71 serviced apartments and retail spaces. The building has been substantially completed, as has Hifu's development.
The works for the upgrade of the intersection have not yet been carried out. The development consents granted to Hifu and Warehouse make provision for the works to be carried out through a Voluntary Planning Agreement ("VPA") which Hifu and Warehouse have entered into with the Council. The VPA requires Hifu to undertake the upgrade and includes a bank guarantee. Warehouse also has obligations under the VPA. Although Toplace has also entered into a VPA with the Council, it does not include the works required for the intersection upgrade or a monetary contribution for the same.
A more detailed outline of the development history of the site is set out in [7] to [31] of Toplace Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1222, in which I also outlined its relationship with other sites. Further, the interests of each of the respondents, TNSW, Hifu and Warehouse is set out by his Honour on the joinder application in Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 121 at [4]-[13].

The conciliation conference

In determining the application for joinder, his Honour also considered it appropriate to refer the matter to mediation pursuant to s 26 of the Civil Procedure Act 2005.
Following the completion of that mediation process, the Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 14 December 2020. I presided over the conciliation conference.

Outcome of the conciliation conference

On account of the parties' participation in the mediation, an agreement under s 34(3) of the LEC Act was reached by the parties at the conciliation conference as to the terms of a decision in each of the proceedings that was acceptable to the parties. The decision agreed upon in each matter is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. Each of the agreements is supported by a jurisdictional statement that is provided to the Court by agreement.
The amended conditions of the concept consent and the detailed consent that are agreed upon, contained in Annexure A to each agreement, preserve the requirement to upgrade the intersection and tie the occupation of Building A to the progress of that upgrade. The agreement between the parties results in conditions of consent that require Toplace (and Jolyn Place Pty Ltd) to enter into a VPA for the delivery of the intersection works, and for the issue of interim occupation certificates on a staged basis, as reflected in the new condition (1A) in Annexure A to proceedings 2020/165316. The result is that occupation of the 266 residential apartments will be permitted once the agreement is executed and the bank guarantee is provided, the occupancy of the 71 serviced apartments will be permitted once the installation and commissioning of traffic signals and associated signage and line marking is completed, and the occupancy of the 13 retail tenancies will be permitted once the works are finalised.
As the presiding Commissioner, I am satisfied that the decision in each of the appeal proceedings is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

In each appeal, the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the buildings the subject of each consent are not altered by the modification applications, and the obligation for the upgrade of the intersection remains even with the modified consents.
The modification applications were notified, as required by s 4.55(2)(c). One submission was received from Warehouse concerning the modification of the detailed consent. Warehouse is now a party to the proceedings and a signatory to the agreement reached at the conciliation conference.
Clause 104 of the State Environmental Planning Policy (Infrastructure) 2007 applies to both consents as the development is a traffic generating development. TNSW was given notice of the development pursuant to cl 104(2A), and is a party to the proceedings. TNSW is satisfied that the staging of the occupation in the manner agreed ensures that the impacts of the development are acceptable. As a result of the upgrade to the intersection and the staged occupancy of the building, I accept the position of TNSW and the Council on the matters in cl 104(3)(b)(ii) concerning the accessibility of the site and cl 104(3)(b)(iii) concerning any potential traffic safety, road congestion or parking implications of the proposed application.
As a result of the modification to conditions in both the detailed consent and the concept consent, the detailed consent will be consistent with the terms of the concept consent, as required by s 4.24(2) of the EPA Act.
The consent of the relevant strata corporation has been provided to the Council.
There is power, pursuant to s 7.7(3) of the EPA Act, to impose a condition on a development consent that requires the developer to enter into a VPA in the terms of the offer made by the developer.

Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act.

Proceedings 2020/165316

The Court orders that: 1. The Applicant is granted leave to amend modification application D/2015/624/F so that the modification sought to development consent is reflected in the updated conditions of consent contained at Annexure A to these orders. 2. The appeal is upheld. 3. Modification application D/2015/624/F is approved. 4. As a consequence of order (3) above, the conditions of development consent number D/2015/624, are now those set out at Annexure A.

Proceedings 2020/283450

The Court orders that: 1. The Applicant is granted leave to amend modification application D/2008/102/F so that the modification sought to development consent is reflected in the updated conditions of consent contained at Annexure A to these orders. 2. The appeal is upheld. 3. Modification application D/2008/102/F is approved. 4. As a consequence of order (3) above, the conditions of development consent number D/2008/102, are now those set out at Annexure A.

Commissioner of the Court Proceedings 2020/165316 Annexure A (527041, pdf) Proceedings 2020/283450 Annexure A (233885, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2020

Toplace Pty Ltd v The Council of the City of Sydney

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Judgment (12 paragraphs)

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