Land and Environment Court New South Wales Medium Neutral Citation: Ecological Centre Pty Limited v Council of the City of Sydney [2011] NSWLEC 1203 Hearing dates: 4, 5, 6, 11, 12, 18, 19 and 20 July 2011 Decision date: 19 July 2011 Jurisdiction: Class 1 Before: Moore SC Decision: Leave to re-open (in order to seek leave to amend the application) refused Catchwords: Leave to re-open; long notice of unaddressed issue; no adequate explanation of delay. Legislation Cited: Environmental Planning and Assessment Act 1979 South Sydney Development Control Plan 1997 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) Autodesk Inc and Another v Dyason and Others [No 2] (1993) 176 CLR 300 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 Category: Procedural and other rulings Parties: Ecological Centre Pty Limited (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel Mr A Galasso SC and Mr R Nottley (Applicant) Mr P Larkin (Respondent) Solicitors Mr W Dwyer Penfold Dwyer Lawyers Pty Limited (Applicant) Mr P Kapetas City Solicitor's Office (Respondent) File Number(s): 10182 of 2011 EXTEMPORE Judgment 1Today is Day seven of a matter that was originally set down for three days. Toward the conclusion of the sixth day, Mr Larkin, counsel for the respondent, raised the question of the jurisdictional ability for me to accept, as part of the overall scheme proposed by the applicant, a condition dealing with a proposed future planning agreement to be entered into pursuant to the Environmental Planning and Assessment Act 1979 (the Planning Act). 2Essentially, it was put to me that pursuant to s 93I of the Planning Act, I could not agree to a condition of the nature that had been advanced by the applicant, toward the middle of the previous hearing periods. It was clear from a consideration of the terms of s 93I(3) of the Planning Act , that that submission was well founded. 3In response to that, overnight at the conclusion of the sixth day and prior to commencement today, an offer and a subsequent, amended offer for a planning agreement were made by the applicant. The amended offer is Exhibit A on the application for leave to re-open and (if granted) for leave to amend the application to incorporate that offer. 4The factual position is that such a planning agreement is an essential underpinning element for satisfying the provisions of the South Sydney Development Control Plan 1997 Part G 3.2 dealing with floor space ratio and the ability, pursuant to the Development Control Plan, to purchase bonus floor space ratio above the base floor space ratio, if substantial public and environmental benefits of types discussed in the Development Control Plan are provided by the applicant (as the counterweighing purchase price for the development indulgence for the increased development intensity that is thus to be provided). 5The development in these proceedings, which I am asked to approve, has a floor space ratio of approximately 2:1 in an area in the Green Square Precinct [formerly under the control of the South Sydney City Council, but after the abolition of that municipal body, under the control of the Council of the City of Sydney (the council)] in lieu of 1.5:1, thus the increase in floor space ratio proposed is of the order of 33.3% m - a not insubstantial amount. 6The council has a process for dealing with applications for such planning agreements. It is described in a document (also tendered on the leave application) called Developing Public Domain Improvements - a Guide to Council's Bonus Floor Space System , under the logo of the former South Sydney Council. 7I am asked now to grant leave to reopen and leave to amend, in circumstances where that will necessarily result in a further delay of several weeks. The application is made, during the course of closing submissions in reply by Mr Larkin, Mr Galasso SC (for the applicant) having already completed his closing submissions. 8It is against that broad history that I turn to consider the time that has elapsed since the matter was first drawn to the attention of the applicant, and the considerations arising from the decisions of the High Court - first, in Autodesk Inc and Another v Dyason and Others [No 2] (1993) 176 CLR 300 and, second, in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009), as to whether, at this stage, it would be appropriate for me to grant the two applications that I am considering. 9First, I am taken to an email from an officer of the council to an estate agent acting on behalf of the applicant (but also copied to the applicant's solicitor) in which it was expressly drawn to the applicant's representatives' attention that a formal offer to be contained in a planning agreement must be made to identify the benefits of a material nature that would accrue to the public of such floor space ratio exceedence were to be permitted. That was an email sent on 27 January 2011. By letter of the same date, the applicant's estate agent, in responding to the email, said, in part: As to FSR we have always recognised the exceedence and intended to address this through MPB" [ that being, I interpose, material public benefit ] " but you will appreciate we were never given the chance to discuss that issue until now. If we can move forward with stage 1 as outlined above, then we will put to you some suggestions for MPB that the site can deliver . 10A further email, not from the original council author but for a planner who has given evidence in these proceedings, was sent to the applicant's real estate agent on 10 February, indicating, by necessary inference, that a variety of issues raised had not been responded to and indicating that if no response were received, the council officers will prepare a report for determination. 11Shortly thereafter, on 3 March 2011, the present Class 1 appeal was commenced, based on the deemed refusal by the council of the development proposal. After that time, the council provided a Statement of Facts and Contentions, filed on 18 April, which [in contention 13 particulars (b) and (c)] expressly re-raised, in the context of these proceedings, the non-compliance with the floor space ratio and these two particulars to which I have referred deal with the absence of satisfying the requirements of the DCP for the provision of public domain benefits. 12From there, the next relevant dates are in the middle of June when joint reports of relevant experts had evolved, two of which are relevant in my consideration. The first is a joint report of Ms Aziz and Mr McNamara, they being the relevant town planning experts for the Council and the applicant respectively, in which (on pp 19 and 20) the experts agreed with the particulars in support of the contention to which I have earlier referred. 13Contra to that, I am taken by Mr Nottley, counsel for the applicant, to a comment by Mr Lane, one of the urban designers who have given evidence in these proceedings, he doing so jointly with Ms Pressick on behalf of the council, that Mr Lane considered that the voluntary planning agreement ought to be offered at stage 2 - that is, the detailed development application stage rather than at the concept stage. 14There are three decisions that must guide how I determine this matter. The first deals with what I am required to be apprised of for the purposes of undertaking the appropriate merit assessment of the concept plan that is before me. That arises because of the decision of the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373, a decision that tells me that I must have regard, as a focal or starting point for my deliberation, to the relevant provisions of a Development Control Plan. Whilst Zhang does not stand for the proposition that such a Development Control Plan is immutable and is not a document from which departure cannot be made, Zhang does tell me that I can only depart from the provisions of a Development Control Plan if I have good and cogent reasons for doing so, and particularly if such reasons were to arise from a broad assessment undertaken pursuant to section 79C of the Planning Act . 15At the moment, there is no basis upon which I could set aside the presumption, in my view, that requires me either to have something that would satisfy 3.2 of Part G, or have an appropriate process in place during the hearing of matters that would permit me to have done so. 16It is in that context that I turn to the essence of the decisions in Aon and in Autodesk as whether I should now permit that defect to be cured. The two decisions, although offered in slightly differing contexts, in my view, provide, for a merit assessments such as this, a significant commonality of theme. 17In the decision of Dawson J in Autodesk , he cites with approval an earlier decision of the High Court, in which it was said that the relevant discretion, akin to that which I am asked to exercise here, will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard . 18In Aon , French CJ, dealing with a similar point, says in a slightly different fashion (but to my reading, an entirely consistent flavour) as follows in para 30: Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. 19In this case, Mr Nottley has valiantly attempted to persuade me that the conduct of the applicant in January and in response to Mr Lane's evidence is entirely reasonable. I regret that I am unable to accept those propositions. 20There is, to my mind, merely a significant evidencing of a lack of action on behalf of the applicant, up until the middle of this trial on the merits, when a condition was proffered, that was, at least at that stage, evidence by the applicant of an intention to try and resolve the matter that was in issue. The fact that it was not an efficacious method of doing so is not something, in my view, particularly to be held against the applicant. However there is no adequate explanation, in my view, of the lost opportunities between January and the commencement of the trial of this matter, on the merits, that can discharge the responsibilities that fall on the applicant pursuant to both Aon and Autodesk . 21I am mindful, in reaching the conclusion that I should reject the application for leave to reopen and thus the necessary consequence there will be no opportunity for leave to amend, that these are proceedings that deal with merits, but deal with merits in a matter where there is a legal framework provided. It is an open and transparent legal framework that arises from the Development Control Plan and there has been an inadequate response to that by the applicant, a response whose inadequacy is not properly explained by any of the material that is before me. As a consequence the application to reopen is refused. Tim Moore Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2011