Reported Decision : (2003) 45 ACSR 383 New South Wales Court of Appeal CITATION : ALISON COBDEN-JONES & ANOR v WOOLLAHRA MUNICIPAL COUNCIL & ORS [2002] NSWCA 382 FILE NUMBER(S) : CA 40091/02 HEARING DATE(S) : 15 November 2002 JUDGMENT DATE : 15 November 2002 First Appellant: Alison Cobden-Jones Second Appellant: Martin Jeremy Watts PARTIES : First Respondent: Woollahra Municipal Council Second Respondent: Ercole Palazzetti Pty Ltd Third Respondent: William Dunleath Blackshaw Fourth Respondent: Rhonda Lynette Blackshaw JUDGMENT OF : Spigelman CJ at 1, 34; Beazley JA at 32; Heydon JA at 33 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT 40052/01 FILE NUMBER(S) : LOWER COURT Sheahan J JUDICIAL OFFICER : First and Second Appellants: B Walker SC/P Larkin/Ms L Byrne COUNSEL : First Respondent: B J Preston SC/Ms K J Williams Second to Fourth Respondents: M Ashurst First and Second Appellants: Spiegel & Associates SOLICITORS : First Respondent: Deacons Second to Fourth Respondents: Blackshaw Lindsay CATCHWORDS : ADMINISTRATIVE LAW - LOCAL GOVERNMENT - Application for development approval - whether Urban Design Guidelines were valid - whether amounted to erroneous construction of Local Environment Plan and Development Control Plan - ADMINISTRATIVE LAW - LOCAL GOVERNMENT - Application for development approval - challenge to Council approval - whether irrelevant consideration taken into account - where Council had made Urban Design Guidelines. LEGISLATION CITED : Environmental Planning Assessment Act 1979 DECISION : Appeal dismissed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40091/02 LEC 40052/01 SPIGELMAN CJ BEAZLEY JA HEYDON JA Friday 15 November 2002 ALISON COBDEN-JONES & ANOR v WOOLLAHRA MUNICIPAL COUNCIL & ORS Judgment 1 SPIGELMAN CJ: This is a challenge to the validity of the decision-making process of the Woollahra Municipal Council by which it approved a large mixed commercial and residential development upon land known as 36A to 48 Bay Street, Double Bay. On 14 January 2002 Sheahan J dismissed the Appellants' application in the Land and Environment Court. The Appellants do not pursue all of the matters raised in those proceedings. This appeal is concerned with the proposition the Council failed to comply with the statutory regime for decision-making and misdirected itself in law. No issue about the merits of the development application arose in the Land and Environment Court. Nor does it arise in this Court. 2 The Appellants challenge five interrelated decisions of the Council: (i) The decision to adopt certain Urban Design Guidelines with respect to the site on 6 October 1998. (ii) The decision on 7 December 1998 to uphold the developer's SEPP1 objection relating to non-compliance with the floor space ratio prescribed by cl 11 of Woollahra Local Environmental Plan of 1995 ("the LEP") ("the 1998 SEPP1 resolution"). (iii) The decision of 7 December 1998 to grant development consent to the development application ("the 1998 consent"). (iv) The decision of 18 December 2000 to uphold the SEPP1 objection in relation to non-compliance with floor space ratio in cl 12 of the LEP ("the 2000 SEPP1 resolution"). (v) The decision to grant development consent on 18 December 2000 to the development application ("the 2000 consent"). 3 The basis of the appeal is found in Council committee resolution of 6 October 1998: "DCC MINUTES – 6 OCTOBER 1998 (D9) DA98/110 – 36A-48 BAY STREET, DOUBLE BAY – A) URBAN DESIGN GUIDELINES AS A METHOD OF INTERPRETING COUNCIL'S PLANNING CONTROLS (B) DEVELOPMENT APPLICATION FOR DEMOLITION OF (3) EXISTING BUILDINGS, CONSOLIDATION OF (3) EXISTING SITES & CONSTRUCTION OF A MIXED RETAIL & RESIDENTIAL BUILDING – 25/9/98 – REVISED SUBMISSION. Note: Mr Rihs, an objector and the applicant addressed the Committee. Note: The Committee added new Condition B3 and amended Resolution A – Overall Building Height. RESOLVED: PURSUANT TO SECTION 91 OF THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979. A. THAT Council resolve to adopt the Urban Design Guidelines set out below as an acceptable method of interpreting Council's Planning Controls, for the subject site:- Activities · Development should contain retail and residential activities providing a transition from the central part of the village retail activities to the adjoining residential activities, as well as contributing to the 24 hour life of the village. · Ground floor pedestrian oriented retail space to extend the role and nature of Bay Street to the harbour. Access · Pedestrian access should be available to all street frontages, particularly Bay Street and Guilfoyle Avenue. · Vehicular access should be rationalised to a single point, at the Cross Street frontage. · Facilities for the loading and unloading of goods should be available on site. Building Envelope – Bulk, Scale and Height Building Alignment · Buildings should be built to the property line along Bay, Guilfoyle and Cross Streets so as to contribute to the spatial definition of each street and the ability to maintain a continuous building line subject to appropriate visual relief by open designed recessed terraces, other than to both street corners. · A colonnade of 3.5 metres width should be provided to all street frontages in order to provide pedestrian shade and shelter, increased area for shopper circulation and a more distinctive layering of space between the public and private realms. Cornice Line/Building Height Plane · A Cornice Line/Building Height Plane height of approximately 12 metres is appropriate for the building frontage alignment and elevation with a 45 degree setback above this height, with the exception of both street corners and appropriate visual relief by open designed recessed terraces to other sections of the three frontages. Overall Building Height · The building height should not generally exceed a maximum of 17.0 metres and any resulting necessary roof top features, above that height, being designed to minimise visual impact. Adjacent Properties · A perimeter building form, with courtyard to rear, should prevail. · The northern end of the building being setback 1.5 metres from the western boundary, at levels one and two and 3.0 metres at level three, with the maximum height of building not generally exceeding 15.0 metres. · A boundary setback of 2.0 metres for the western side (Guilfoyle Avenue frontage) of the building, with 45° degree setbacks above the established cornice line is appropriate to minimise the impact of overshadowing on adjacent properties. Street Corners · Building frontage height at the corner area of Bay Street and Guilfoyle Street North should be to an absolute maximum of 15 metres. · Building frontage height at the corner area of Bay Street and Cross Street should be a maximum of 15 metres. Building Design Building Articulation · The building massing should emphasise the vertical proportion of the Victorian terraces and adjacent building. · The lower portion of the building from ground to first and second floor level should be well articulated and modulated to provide scale and shelter for people circulating around the building. · The colonnade space should continue the rhythm of column spacing along the facade of the building. · The proportion and detailing of the materials in the lower portion of the building should be of appropriate human scale. Fenestration · Openings should be vertical in proportion emphasising the vertical character established by the column spacing. Roofs · Roofs should be flat, screened by a parapet. · Elevator overruns, mechanical plants and other services should be designed so that their visual impact is minimised. Materials and Finishes · High quality building materials, finishes and details should be used to street frontages. · Highly reflective wall and roof material are not permitted. B. THAT Council resolve to defer consideration of development application DA 98/110 for demolition of three (3) existing buildings, excavation and construction of a mixed retail and residential building on properties Nos 36A-48 Bay Street, Double Bay, pending the submission of a revised proposal that accords with the Urban Design Guidelines referred to in item A, above; the requirements of Council's Traffic Committee, as determined on 6 October 1998 or thereafter; and the following design issues:- 1. The building design being modified to accommodate retention of the Jacaranda tree to the rear of the adjoining property and the Avocado tree on the subject premises. 2. The design of the pergola to the recessed terrace at level three, off the Bay Street frontage, being minimised, to ensure the design benefit of the recess in the façade is maintained. 3. The floor space ratio of the development is not to exceed 3:1. ADOPTED 6 / 10 / 98 " 4 A number of aspects of this resolution should be noted. First, the resolution is concerned expressly with a particular development application i.e. DA98/100 – 36A to 48 Bay Street, Double Bay. Secondly, it is a resolution made pursuant to s 91 of the Environmental Planning Assessment Act 1979. As at the relevant date, that section was the provision for the granting of consent to a development application by a Council. Thirdly, the resolution is divided into two parts denoted "A" and "B" respectively. The introductory words to part "A" include the words "as an acceptable method of interpreting Council's planning controls" upon which the Appellants particularly rely. 5 It should be noted that part "B" of the resolution is separate and distinct. It defers consideration of the development application pending a revised proposal in accordance with the Guidelines in part "A" and also with respect to certain other matters. The other matters are three, commencing with the retention of a jacaranda tree and concluding with a reference to the floor space ratio not exceeding 3:1. It may have been of some significance that the floor space ratio is not part of the "Urban Design Guidelines". 6 However, in subsequent Council documentation the 3:1 floor space ratio was referred to as one of the "Urban Design Guidelines". 7 The Appellants' submissions commenced with the proposition that the Urban Design Guidelines Resolution "Purported to amend certain controls contained in the LEP and the DCP" (Development Control Plan) and did so without complying with the statutory processes applicable to amendments of an LEP or a DCP, specifically Ministerial control and public participation. It is unnecessary to set out the provisions of the legislation requiring public and Ministerial involvement in the decision-making process of this character. There is no issue that the requirements of the Act in these respects, if relevant at all, were complied with. 8 In oral submissions the Appellants resiled from the written submission that there was an erroneous interpretation of the relevant provision with respect particularly to the floor space ratio. They nevertheless continued to rely on the proposition the Council misdirected itself by purporting to apply the guidelines as if they had equivalent status to a provision of either the LEP or a DCP. 9 The primary issue is how to characterise the resolution, or at least that part of it that describes itself as Urban Design Guidelines, and the use to which that resolution was put in the subsequent decision-making process by the Council. 10 The Appellants focused on the terminology that the guidelines were adopted "as an acceptable method of interpreting Council's planning controls". The Appellants challenged a number of specific matters as not capable of constituting an "interpretation" of requirements contained in the LEP and the DCP, specifically the requirements for set back, building height limits and floor space ratio. 11 The Appellants submitted that the erroneous construction of the provisions of the LEP and the DCP constitutes an error on a question of law and that, when making the subsequent decisions - the 1998 SEPP1 resolution, the 1998 consent, the 2000 SEPP1 resolution and the 2000 consent - the Council erred by purporting to apply this erroneous Urban Design Guidelines Resolution which they characterised as an irrelevant consideration. 12 The Appellants' submission focused on the reference to "interpreting" in the introductory words to part "A" of the 6 October 1998 resolution and submitted that it should be understood as a reference to the determination of the meaning of relevant provisions of the LEP and the DCP. I believe this is the submission that was withdrawn. That approach was put before Sheahan J. In my opinion his Honour was plainly right to reject the submission. 13 Resolutions of a Council should not be parsed and analysed in this way. It may be that the word "interpret", when used by a lawyer, is likely to refer to a determination of the meaning of an instrument. When used by an architect or town planner it is more likely than not that it is intended to mean something distinctly different. Read in its context of the resolution, and also of the events leading up to the resolution, the phrase "an acceptable method of interpreting Council's planning control" means no more than the result until then of the consideration of those matters required or permitted to be taken into account. The "Guidelines" are simply the identification of some design principles likely to prove acceptable to the Council when exercising its statutory responsibility to give consent under s 91 of the Act in the context of the applicable statutory instruments. Furthermore, the use of the general words "planning controls" does not, in my opinion, suggest that the focus of attention was an instrument to be construed. The words "planning controls" as used at various points in the documentation, including in the resolution, extend to the full scope of material considerations to which Council could have regard in exercising its relevant decision-making power under s91 of the Environmental Planning and Assessment Act. 14 In the written submissions with respect to this matter the Appellants focused exclusively on the change in the floor space ratio. I do not understand them to have abandoned their reliance on the other differences between the LEP and the DCP, on the one hand, and the final approved development on the other, however, the focus was on the floor space ratio. The entire purpose of each SEPP1 resolution, to which objection has been taken, was to vary the statutory prescribed ratios. It cannot be said that a resolution which has that sole purpose could be set aside on the basis of an inference that the Council somehow acted on a misunderstanding to the effect the floor space ratio was something other than it was. The inference is plainly wrong. 15 The Appellants do not challenge Sheahan J's findings of fact. Those findings indicate, in my opinion, in the total context of the decision-making process, that the Urban Design Guidelines cannot be given the characterisation for which the Appellants contend, nor that they were employed in the impermissible manner for which the Appellants contend. 16 His Honour found the Guidelines Resolution emanated from discussions between the Council and the architect then acting for the developers. Those discussions commenced in August 1997 and culminated in the presentation to Council officers by that architect of an assessment for the site and a draft of the scope and content of a set of design guidelines. Further drafts of sets of guidelines were presented at subsequent meetings and in correspondence between Council officers and the architect. This process occurred on the basis that the architect, on behalf of the developer, was seeking to establish what was described as a "suitable development framework for the site", in consultation with the Council, prior to the detailed work being undertaken on a development application. 17 The 1998 development application was lodged on 21 April 1998 during the continuing negotiations between the architect and Council officers. The documents submitted with the development application outlined the collaborative development of the proposal between the architect, Council staff and Councillors. The Statement of Environmental Effects lodged with the development application said: "The approach is based on urban design best practice. Rather than simply applying a set of arbitrary and catch-all planning standards, the approach has been to develop site specific guidelines through the act of design itself. The approach takes into account the key planning objectives and principles set out in the Double Bay Development Control Plan and interprets them against a detailed assessment of the urban context in which the proposed development is to be placed." 18 SEPP1 which permits the variation of development standards allows a Council to adopt such an approach. The Statement of Environmental Effects went on to refer to, and to attach a draft of, the Urban Design Guidelines for the site as then proposed. As I have indicated above, further drafts of the Guidelines were prepared and Sheahan J noted that each was a site specific guideline for the particular site under consideration. 19 The Council officer reported to the Development Control Committee of Council, which had been delegated responsibility for determining the development application. It was this officer who came up with the formulation that the Guidelines should be adopted "as an acceptable method of interpreting Council's planning controls". This formulation appears on a number of occasions in the documentation. For present purposes it is its appearance in the resolution on 6 October which is of particular significance. 20 The Council officer also recommended deferring consideration of the development application pending the submission of a revised proposal in accordance with the guidelines and other requirements of Council. He also reported to Council as follows: "The architects commenced discussions with Council on 1 August 1997. The discussions related to a contextual design analysis to resolve the appropriate form and scale of proposed development on the subject site and as an acceptable means for interpretation of Council's planning controls. The discussions were driven by the architects and were based upon a study and survey of the locality. As a result of discussions with Council's staff and Councillors, the architects developed new Urban Design Guidelines as the appropriate method of interpreting the Double Bay Development Control Plan. This led to the development of three design options. An amalgam of two of the options arose as the subject proposal." 21 The officer went on to make observations about, and, to some degree, made criticism of, the then draft of the guidelines and of the development and made some recommendations. In particular, he recommended a lower floor space ratio than that proposed in the amended 1998 development application and in the draft guidelines and the deletion of one floor. 22 The Development Control Committee did not accept the officers' recommendations in their entirety and passed a resolution in slightly different form. This was the resolution of 6 October 1998 which I have set out in full above. 23 Subsequent to this resolution further discussions took place between the architect and the Council. Drawings were revised and re-submitted to reflect the Council's decision of 6 October 1998. These were the subject of further consideration at a Committee meeting which approved the development application and upheld the SEPP1 objection to compliance with the statutory floor space ratio on 7 December 1998. 24 In my opinion, this recitation of the context in which the resolution of 6 October 1998 was adopted indicates plainly that it was the product of a site specific design analysis by the architect in consultation with the Council over a period of time. The resolution of 6 October 1998 is an interim indication of the Council's likely decision as to the merits of an application, both in its current form and if implemented in a particular manner. Nothing in the legislative scheme prevents the Council acting in such a sensible way. 25 A Council may exercise its power to consider and determine a development application over a period of time and on a number of occasions. Such consideration may identify aspects of the development which are satisfactory and aspects which are unsatisfactory or issues that have been adequately addressed and issues which require further information and analysis. A Council may notify a developer of its consideration to date through its officers or through more formal processes of Council Committees. Council can give an indication as to its current state of thinking or its likely opinion if the development were to be modified in a particular way. A resolution of a Council suggesting revisions to a development application in the form of guidelines, or even the adoption of guidelines, is only a step in the process of considering and determining the development application as a whole. 26 The introductory words of the resolution complained of, i.e. the reference to s91 of the Act, correctly identified the source of power pursuant to which the Council was proceeding to act. The resolution constitutes a step along the way to a final decision. It is entirely inappropriate, in my opinion, to characterise this perfectly sensible course as if it was a revision of the formal environmental planning instrument. 27 Sheahan J was correct, in my opinion, when he concluded at [176]: "In the court's view, the UDG is a simple resolution of a collegiate body consolidating in one document the outcomes of a detailed and protracted series of pre-[development application] discussions between the proponents of the development and the relevant consent authority. Reacting to that document from time to time as it evolved, including by expressing collegiate views in resolution by Council, is a relevant and legal part of the Council's discharge of its ongoing duty to control development – see s91 of the EP & A Act. In that sense, the UDG are merely the product of the Council having accepted, in general terms, a site specific design analysis, prepared basically by the proponent's architect and detailing the site's constraints and opportunities." 28 Nor in my opinion is there anything impermissible about a Council indicating in advance what may be its approach to a SEPP1 application that has not yet been lodged, in the context of considering a particular proposal. 29 In each respect, i.e. the SEPP1 application and the ultimate decision on consent, it is permissible, in my opinion, for a Council to refer back to its earlier considerations and any interim or conditional indication of Council's view that had been given. This is to recognise the chronology of the decision-making process, rather than to substitute the earlier indication as the relevant basis of a statutory decision or of a statutory requirement. 30 When, in this case, the Council documentation referred to "compliance" with the Urban Design Guidelines the relevant officers were simply acknowledging that the amended proposal, then under consideration, was in accordance with the views that had been expressed on an interim basis in the course of a lengthy period of detailed consideration. It was not on any occasion, in my opinion, the application of a planning instrument or a plan other than those formally adopted under the statute, namely, the LEP or DCP. 31 In my opinion the decision-making process was a valid decision-making process. I would dismiss the appeal with costs. 32 BEAZLEY JA: I agree. 33 HEYDON JA: I agree. 34 SPIGELMAN CJ: The order is as I have indicated. (Counsel addressed on costs.) 35 SPIGELMAN CJ: Counsel for the Appellant has indicated that the Court's order as to costs should not extend to the costs of the Second to Fourth Respondents. The court was informed that these Respondents had submitted in the court below, shortly after the commencement of the proceedings, and had not taken part in the hearing before Sheahan J. 36 Counsel who appeared in this Court for the Second to Fourth Respondents submitted that his clients had an interest in the proceedings and had an entitlement to a watching brief in case something arose. There was nothing in any of the material filed in this court to indicate that anything was likely to arise that had not arisen before Sheahan J. 37 In my opinion, having taken a course of not being involved in the proceedings at an earlier stage, no substantive reason was given for wishing to participate at this stage. The Court's order as to costs should be modified by excluding from the order the costs of the Second to Fourth Respondents in the appeal. ********** 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.