Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244
Zhang v Canterbury City Council [2001] NSWCA 16751 NSWLR 589
Category: Principal judgment
Parties: Trinvass Pty Ltd (ACN 074094063) (First Applicant)
Judgment (10 paragraphs)
[1]
Introduction
Mr Hemmings tendered a folder of public submissions that had been received by the Council concerning plans that had been displayed earlier. Subsequently, public submissions that had been made in response to the re-exhibited Revision G Plans were also provided and added to this folder. The folder became Exhibit 2.
I note that, amongst the documents added as responses to the renotification, there is one submission in support. Given the outcome, overall, of the proceedings, it is unnecessary to deal with that submission further.
[2]
Introduction
I have earlier set out the two significant residual concerns that were held by the Council. The first of them, the communal open space issue was, for the reasons earlier outlined, resolved in a constructive fashion by moving the communal open space to the north-eastern corner of Level 7 with the area that had previously been designated for this purpose on Level 4 becoming a new three-bedroom apartment.
I note, in passing, that the second three-bedroom apartment agreed to by the planners and urban designers as being a desirable contribution to the apartment mix of the building is to be located on the north-eastern corner of Level 3 immediately below.
The second of the Council's residual issues, concerning the appropriate approach to ensure that there is a 2.7m floor-to-ceiling height guaranteed for all the habitable rooms in all apartments within the development has been determined by me, for the reasons earlier set out, in favour of the approach advocated by the development proponents.
Setting aside those two issues, it is clear that with the agreed resolution between the various experts of the other design matters that had remained of concern to the Council in the Revision G Plans, the Council does not support any of the issues raised by the objectors as warranting any further alteration to the proposal let alone providing any basis for refusal of the development as finally will be approved.
[3]
Outcomes of objector concerns - general
The matters raised in the public submissions fell into the following groupings:
Acoustic impacts on 230 Elizabeth Street;
General amenity impacts on the locality during construction;
Incompatible bulk and scale - the proposal is an overdevelopment of the site;
Inconsistencies in the plans;
Loss of amenity to 37-51 Foster Street by overshadowing and overlooking of the internal courtyard and windows onto it;
Non-compliance with the DCP height control of five storeys;
Overshadowing of balconies and windows of other apartments in the vicinity;
Privacy impacts on existing apartments in the vicinity;
Reduction in property values;
The architectural design is incompatible with the area; traffic and parking impacts on the immediate local street network, including during construction;
The impact on views to the city skyline, Central Railway Station, Belmore Park and other aspects of the locality from existing residences; and
Views from the public domain to the heritage listed Edwards & Co building in Foster Street and the impact on the heritage value of this building.
Virtually all of the objector concerns were considered and dealt with (to the extent that changes to the proposal were appropriate to address them) by the expert conferencing process. As a consequence of these expert agreements (the outcomes of which, in my assessment, do not warrant further consideration save for my acknowledgement that I have read all of the individual and joint expert reports), those matters have been appropriately and adequately addressed to the extent that they are valid.
To the extent that there are agreed outcomes contained in these joint expert reports, the outcomes have included further modifications to the design in many instances. An example of this is the fact that there has been a revised construction traffic management plan prepared that has the effect of, I am satisfied, appropriately responding to the concerns of the objectors, to the extent that it is possible to do so if a construction project of this nature is to be undertaken on the site.
[4]
Internal design deficiencies
As earlier noted, in the Council's Amended Statement of Facts and Contentions relating to the Revision F Plans, matters were raised dealing with other matters canvassed in the objection:
deficiencies in detail or inconsistency in the plans;
whether there were sufficient of the proposed apartments provided with either cross-ventilation or natural ventilation (there being a difference between the two with naturally ventilated apartments being ventilated by shafts opening at the roof); and
whether sufficient of the apartments achieved adequate solar performance.
As I have earlier indicated, these issues were resolved, at least in part, by the Revision G Plans whilst further progress has been made through the ongoing discussion process arising out of these appeal proceedings. All three of these matters, however, were raised by the objectors to the proposal so, it is appropriate to set out the following, relevant final positions:
Prior to the making of orders to grant development consent, the development proponents will need to provide to the Council and the Court a set of final revised plans incorporating all the changes agreed to by the various experts as addressing internal issues and ensuring that all of the plans are consistent, one with the other. These plans will need to be provided in a fashion that satisfies the Council that the agreed positions have now been reflected in a final set of plans to which approval can be given;
The relevant groupings of experts have now agreed that there are now an appropriate number of apartments with satisfactory ventilation (of either type earlier noted) and an appropriate number of apartments with satisfactory solar performance; and
I have read the various individual and joint expert reports that touch upon these topics as they were tendered during the proceedings and form part of the evidence. I am satisfied that there is no basis upon which I could reject the agreed expert outcomes and require any further modification to the final agreed design (let alone refuse the project on any such basis).
[5]
Specific objector matters requiring specific comment
There are, however, two matters raised by the objectors to which it is appropriate that I respond specifically as they are matters that are, in one instance, entirely outside the scope of planning law to consider, and, in the other, an agreement reached between the Council and the development proponents permitting an eight story building when the DCP storey control map envisages a five storey building on the site.
[6]
Impact on property values
Objection is made to the proposal on the basis that a consequence of the alteration of outlook and the removal of views to the west and north-west from apartments to the east or south-east of the site will have an adverse impact on the value of the properties involved.
It is unnecessary for me to consider whether or not this concern is true as it is the long-settled legal position that impact of an otherwise lawfully approvable development proposal on the value of other properties is not a valid planning consideration.
In explaining this, I am not to be taken to be commenting on whether or not the feared negative property value outcome will follow from approval of a development of the height proposed on the site, merely that it is not a matter that I am permitted to consider as a valid part of the planning assessment of impacts of the proposal.
[7]
Views and the height of the building
I turn, now, to the question of the impacts of the height of the building on views to or from other properties in the vicinity.
There are two matters to be observed on this point. First, the LEP height limit on the site is 29m and the height of that which is proposed is 25m. The proposed development is thus compliant. Although the Council has different limits in its DCP (including a five-storey limit control where eight storeys are proposed in this development) such provisions in a development control plan, whilst requiring to be given proper consideration in a development assessment process (see Zhang earlier discussed) they do not act as a prohibiting limit. This, particularly, arises as a consequence of the outcome agreed to by the Council of an eight storey building rather than one of five storeys as proposed by the DCP.
In this instance, the Council no longer presses concerns arising out of the height or the number of storeys (with me being required to determine only the floor-to-floor separation earlier dealt with).
On the basis of the uncontradicted expert agreements, there is no proper foundation for my intervening about the height of the building, let alone being provided with any basis to refuse the proposal.
[8]
Conclusion
With respect to the sole issue of significance that remained in dispute between the parties (what is the appropriate method to ensure achievement of a minimum 2.7m floor-to-ceiling height in all habitable rooms within the apartments in the proposed development), I have determined that the approach advocated by the development proponents is acceptable and should be permitted.
All other matters (including the significant issue of an appropriate location for and dimensions of communal open space for the development) have been resolved by agreement between the experts engaged by the parties.
I have also considered all of the objections raised in the public submissions concerning earlier versions of the plans and the additional submissions relating to the most recently publicly notified plans (Revision G). I am satisfied that there are no other valid concerns arising out of them that have not been properly and appropriately addressed as outcomes of the expert conferencing process in these proceedings.
[9]
Directions
As consequence, to permit orders to be made to grant development consent to the proposal - reflecting this determination and the agreed outcomes between the parties, it is necessary for the preparation of both revised plans and revised conditions of consent. The plans and conditions will need to be settled between the parties prior to the making of orders. I therefore give the following directions:
1. The applicants are to file and serve revised settled plans reflecting the outcome of these proceedings by the close of business on Friday 2 October 2015;
2. The respondent is to file and serve (including electronically by email to my Associate) revised settled conditions of consent reflecting this determination by the close of business on Friday 2 October 2015;
3. The matter is set down for mention before me on Friday 9 October 2015 at 9:15 AM;
4. If (1) and (2) are complied with, I will make orders in chambers granting development consent based on the revised settled plans and subject to the revised settled conditions of consent and vacate the mention before me on 9 October 2015; and
5. Liberty to apply on two days' notice to the Court and the other party if there are any further matters arising.
On 30 October 2015, after the parties provided settled revised plans and conditions of consent, Orders were made in chambers, as per the attached below, to give effect to this decision.
trinvass_2015_10_30_13_48_07_985 (1.35 MB, pdf)
[10]
Amendments
22 September 2015 - No amendment to the substantive decision. Amendment only to cover sheet at 'Decision'.
30 October 2015 - Orders made in chambers, 30 October 2015, upon receipt of lodged settled revised plans and conditions are included as an attachment.
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: 30 October 2015
Parties
Applicant/Plaintiff:
Trinvass Pty Ltd and Anor
Respondent/Defendant:
Council of the City of Sydney
Cases Cited (4)
Consideration of the floor-to-ceiling height
I now turn to consider how I should determine this matter in light of the submissions made by Mr Hemmings and Ms Duggan as to how I should approach the terms of the DCP and the competing conditions advanced by the parties.
Although the competing positions were the subject of moderately vigorously advanced competing advocacy, the position is not, in my view, one giving rise to radically complex issues.
Before returning to set out the precise terms of the DCP Note that gives rise to this debate, it is appropriate that I record, before turning to an analysis of its terms, to observe that development control plans are not statutory Environmental Planning Instruments in the defined sense provided for in the Environmental Planning and Assessment Act 1979 (the Planning Act) and are not prepared by Parliamentary Counsel. In that regard, it is appropriate, taking the Council's case at its highest (as I elect to do given the conclusion that I have reached on taking this approach that the Council's position is not to be preferred), it is not appropriate to adopt a fine-tooth comb approach to analysis of the term of the DCP here engaged (applying, by analogy, the decision in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 to consideration of the terms of the DCP).
It is appropriate, therefore, to repeat the terms of the Note to cl 4.2.1.2 of the DCP that provides the foundation for this disagreement. It is in the following terms:
Note: A floor-to-ceiling height of 2.7m requires a minimum floor-to-floor height of 3.1m.
If the Note were to be dealt with in its literal terms, it contains what is said to be a statement of absolute fact, namely, that is not possible to achieve a 2.7m floor-to-ceiling distance unless a floor-to-floor separation of 3.1m is provided.
It is clear from the evidence of the architects set out above that both agree that such an absolute assertion is incorrect. Therefore, if the Note is to be read and understood in terms, it is an assertion made without any valid basis and should, therefore, be ignored.
However, if one were to take the less brutal approach, as I do for the purposes of these proceedings, I should treat it as if it had been intended to read:
Note: To ensure that a minimum 2.7m floor-to-ceiling height is achieved in all habitable rooms, the Council requires a minimum floor-to-floor separation of 3.1m.
Treating the Note as if it were so drafted takes the Council's case in these proceedings at its highest. I therefore turn to deal with this issue as if the Note were so drafted. The first thing that follows is that (at least until March 2014) the unalloyed guidance provided by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589 applied.
From what was said in Zhang by Spigelman CJ at [75], three propositions emerge. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to this application is entitled to significant weight in the decision making process but it is not in itself determinative.
If this were to have remained the unqualified position, my approach would have been to accept that the control sought to be imposed by the DCP was to require such a 3.1m minimum floor-to-floor separation and then, without in any way appearing to be canvassing the validity, in a general sense, of such a proposition (as to do so would be contrary to Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; 172 LGERA 338), consider whether, in the circumstances of this development proposal, it would be unnecessary to impose such a requirement.
I am satisfied that, in this case, that would be unnecessary for the following reasons:
It is the agreed expert position that the desired floor-to-ceiling height of 2.7m can be achieved using one or other of two conventional construction methodologies which, although not the most frequently used construction methodology, nonetheless are not so unusual as to be regarded with suspicion as to whether the 2.7m floor-to-ceiling height can in fact be achieved;
The development proponents have proposed a condition of consent requiring that this, in fact, be achieved;
The condition of consent requires an independently verified, staged and self-policing process to ensure that this is achieved;
The condition does not require intervention by the Council but does require the development proponents to provide documentation to the Council demonstrating that staged compliance is being achieved; and
It is the long-settled legal position that I am obliged to assume that the beneficiary of a development consent that is subject to conditions will abide by, and fulfil, the terms of those conditions.
In simple Zhang consideration terms, that chain of reasoning would be sufficient, in a broad and more abstract sense, to permit departure from the DCP requirement interpreted in the fashion I have taken.
I accept that the tolerances that are inherent in the approach proposed by the development proponent leave little margin for error and will require construction to be executed with, perhaps, far greater attention to detail than might ordinarily be the case. However, the development proponents embrace that requirement and have advanced the development consent regime earlier set out as a method of ensuring that this is achieved. One can only assume that the development proponents understand that, in a worst case scenario, the Council might seek to prevent them constructing the uppermost level of the development if they have not met their undertaking to provide the necessary 2.7m floor-to-ceiling heights mandated by the development consent.
However, in addition, there are two further factors that act to provide additional comfort to this approach. First (and of only a little weight, to be true), as earlier set out, the development proponents desire to construct the building within the 25m height limit despite the Council's offer of a dispensation from the consequences of doing so if there were to be adoption of 3.1m floor-to-floor separations. It matters not whether this position is adopted because of a proponent adopted understanding of the decision of Lindsay J in The Owners - Strata Plan No 69312 v Rockdale City Council & Anor; Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244 or because the development proponents wish to preserve some future perceived additional development potential that would only be able to be realised if there were to be a sufficient residual gap between the 29m maximum height for the building and a 25m high building actually constructed or for some other reason unpostulated in these proceedings.
Second, and of greater importance, the Parliament enacted s 79C(3A) of the Planning Act, a provision that came into effect in March 2013. It is a provision in the following terms:
(3A) Development control plans
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
In this subsection, standards include performance criteria.
The effect of s79C(3A)(b) mandates taking a flexible approach to those matters subject to this aspect of the dispute between the parties. It seems to me that it is necessary for me to determine whether the alternative solution offered by the development proponents as achieving the object of the DCP provision mandating a minimum floor-to-ceiling height of 2.7m can be achieved without compliance with the terms of the Note as I have proposed it should be construed for the purposes of these proceedings.
It is clear to me that, this new statutory provision does modify the position that has followed since the decision of the Court of Appeal. Such a modified position, where I am satisfied that the primary objective of a 2.7m floor ceiling height can be achieved if the approach proposed by the development proponents is executed in the fashion required, the Note to the development control plan cannot stand as an insurmountable barrier to a 3.0m floor-to-floor separation as proposed.
Mr Hemmings suggested that, even if I were satisfied that it was possible to be achieved through the processes advanced by the development proponents, nonetheless a properly cautious approach would be to adopt the 3.1m floor-to-floor separation advocated by the Council. He submitted that, if I were to do so by adoption of the conditions proposed by the Council (as earlier set out). It was his submission that to impose those conditions was permissible pursuant to s 80A of the Planning Act and that their imposition would not fail any of the Newbury tests (Newbury District Council v Secretary of State for the Environment [1981] AC 578):
(i) the condition must be imposed for a planning purpose; (ii) it must fairly and reasonably relate to the development for which permission is being given; and (iii) it must be reasonable.
Whilst I am satisfied that there is a proper basis to conclude that the first and second of the tests are satisfied, I am ambivalent (at best) as to whether it would be reasonable to do so in the circumstances here and counted. However, again to take the Council's position at its highest, I am prepared to assume that the condition, if imposed, would not fall at this hurdle. That, however, does not mandate its imposition, it merely establishes that the Council's proposed conditions could be imposed. The question of whether they should be imposed give rise to a different discretionary consideration which, for the reasons earlier articulated, I do not consider it should be exercised in the fashion proposed by the Council.