Land and Environment Court New South Wales Medium Neutral Citation: Trinvass Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 77 Hearing dates: 8 May 2018 Date of orders: 09 May 2018 Decision date: 09 May 2018 Jurisdiction: Class 1 Before: Moore J Decision: Directions at [52] Catchwords: DEVELOPMENT CONSENT - modification application - was proposed modification one which would result in development substantially the same as that originally approved - consideration of proposed modification both quantitatively and qualitatively - proposed modification substantially the same - merit consideration - proposed modification acceptable on merits - appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15 and 4.55 Sydney City Local Environmental Plan 2012, cl 6.21 Cases Cited: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 Vacik Pty Ltd v Penrith City Council, unreported 24 February 1992 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 Category: Principal judgment Parties: Trinvass Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: Mr C McEwen SC/Ms N Hammond, barrister (Applicant) Ms A Pearman, barrister (Respondent) Solicitors: Newhouse & Arnold Solicitors (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 383203 of 2017 Publication restriction: No TABLE OF CONTENTS Introduction The statutory framework Assessment of the proposed modification This determination process The 2015 approved development The 2015 changes to the design The present modification application Consideration of the statutory test The quantitative assessment The qualitative assessment Merit matters Solar impacts Directions EXTEMPORE JUDGMENT Introduction 1. HIS HONOUR: After a hearing between 15 and 17 September 2015, on 21 September 2015 I gave a judgment in proceedings between Trinvass Pty Ltd (the Applicant in these proceedings) and the Council of the City of Sydney (the Council), concerning a proposed development sought to be carried out by the Applicant at 216-228A Elizabeth Street, Sydney. The result of that hearing was that development consent ended up being granted in a fashion that required - after dealing with the merits - the revision of plans and the revision of the conditions of consent. 2. These were subsequently provided to me and, in late October 2015, a development consent consistent with that determination was granted. The statutory framework 1. The Applicant has now applied direct to the Court, pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (the EP&A Act), whereby, pursuant to subs (8), an applicant can apply directly to the Court to modify a development consent by the Court. Assessment of the proposed modification 1. Although, in the intervening period of time, the development consent has been modified by applications made to the Council, they play no part in my determination of this application, as the requirement that is contained in s 4.55(2)(a) is that I must be satisfied that the development - if the modification were permitted - would remain substantially the same development as the development for which consent had originally been granted and for that purpose setting aside any subsequent modifications which have taken place. 2. To do this, I am required, first, to undertake the assessment as to whether the proposed modification - if permitted - would be substantially the same as the development originally approved and, as part of that process, s 4.55 (3) requires me to take into account both matters that are set out in s 4.15 (1) of the EP&A Act as well as the reasons by which the original grant of consent was determined by me. As a consequence, it is necessary, in my view, before I turn to those tests, to deal with a number of matters. This determination process 1. First, it is to be observed that, although there is no onus of proof in Class 1 merit appeals or I add in Class 1 modification appeals, as Preston CJ observed, in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 (Australian Protein Recyclers), at [2]: An Applicant for development consent always bears a persuasive burden of proof: the Applicant must persuade the consent authority, whether it be the Council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed. 1. His Honour's comment does not apply, in terms, to what I am dealing with this morning. 2. Nonetheless, I am satisfied that there remains a persuasive burden on the Applicant to demonstrate not only that the requirements of s 4.55(2)(a) are satisfied, but that particularly, if I get to this step, that the merit matters called into play by s 4.55(3) (calling up the evaluative matters in s 4.15) are satisfactorily addressed. The 2015 approved development 1. I now turn to the original development application that was before me in 2015. 2. My determination on that occasion set out, at [15] of my reasons for decision, that: The two issues that remained of significant concern were whether the nature and location of the communal open space proposed for the north‑eastern corner of level four of the development was sufficient in area and satisfactory in expected performance and whether or not the proposed development could in fact be constructed so as not to exceed 25 metres in height. 1. All other matters which had originally been pleaded by the Council as barriers to approve the then version of the Applicant's proposed development had been resolved during the joint expert conferencing process and that, as a consequence, matters of structural engineering, traffic and parking, ventilation and the like no longer required my attention. During the course of those proceedings, as I noted, at [19] in the decision particularly, I attended the site and undertook an inspection of the precinct and heard from a number of objectors. The 2015 changes to the design 1. Relevant to the objector, whose evidence I heard on site during the course of these proceedings, Mr Colgan, I was taken, during the 2015 proceedings, by the strata manager of the apartment block in which Mr Colgan's apartment is located, not only to the small courtyard at the base of the lightwell in that development, but also to the uppermost corridor of that development immediately outside what I now know to be Mr Colgan's apartment and to which I was taken by Mr Colgan during the course of the on-site evidence in these proceedings. 2. As a consequence I have a dual appreciation of the matters which are of concern to him. In 2015, it was clear that the proposed then location of the communal open space proposed to be inserted into the north-eastern corner of level four would have created a cavernous and entirely unacceptable communal open space. As a consequence - as I discussed in my 2015 decision - I posed a number of questions to the experts about the potential resolution of that and, in particular, as set out between [20] and [23] and then [26] and [32], the proposition was engaged as to whether that communal open space could be relocated to the then proposed uppermost level. 3. After considering the options, the Council, having expressed a view about the extent of the area needed for satisfactory communal open space, and Ms Duggan of Senior Counsel, then appearing for the Applicant, having done so too, it was agreed that if the communal open space were to be relocated to the uppermost level at the north-eastern corner, that space would not only be acceptable, but would resolve some potential impacts on the property that encompasses Mr Colgan's unit. 4. The second issue that was in contest on that occasion was whether that which could be constructed on site could achieve three things. Firstly, a 2.7‑metre floor-to-ceiling height; second, a three-metre slab-to-slab height and, as a consequence, if both of those could be achieved, the permitting of constructing of the development so that it did not exceed a 25-metre height. 5. The 25-metre height limit was something that related and arose out of consideration provisions in cl 6.2 (1) of the Sydney Local Environmental Plan 2012 (the SLEP), a provision which would have been engaged had the development exceeded 25 metres (as cl 6.2(1)(v) mandates for such a development exceeding 25 metres for holding of a competitive design process unless there had been some dispensation granted for that). 6. The purpose of the competitive design process mandated by that provision of the SLEP was to ensure that design excellence was achieved. As I have earlier indicated, there is no doubt in my mind that the development as originally proposed, but not that which resulted from the 2015 proceedings, would not have satisfied design excellence because of the inappropriate and dysfunctional location of the communal open space, a matter resolved during the course of the hearing. 7. There was considerable controversy between the parties as to whether those three tests - that is, 2.7-metre floor-to-ceiling, three-metre slab-to-slab and a limit of a 25-metre maximum height could be satisfied. I eventually was satisfied that, with a quite prescriptive clause which was subsequently inserted in the conditions of consent, such an outcome was achievable. As a result, development consent was granted subject to conditions and revised plans that addressed both the prescription of the three elements relating to the internal heights and the maximum overall height of building, plus the location of the communal open space. The present modification application 1. The application that is now before me seeks to do two things. First, it seeks to add an additional upper level and, second, to remove the communal open space from what would then become the penultimate level and retain it as being located on the uppermost level of the proposed development. Self‑evidently, approving that will result in a building that exceeds 25 metres above ground level. However, despite that, the site has an overall maximum height limit of 29 metres, a height which will not be breached if this modification is to be approved. 2. Similarly, there is a floor space ratio which, even if the proposed modification is to be approved, will not be breached as a result. There are therefore no controls engaged that would act as an impediment to the proposed modification. Consideration of the statutory test 1. Having set out that preambular material, it is now necessary to turn to the question of whether testing s 4.55(2)(a) of the EP&A Act is satisfied. 2. The starting point for any consideration of whether or not a development modification will result in a development that is substantially the same is that - as discussed by Stein J in Vacik Pty Ltd v Penrith City Council, unreported, 24 February 1992 (Vacik) - his Honour observed that the Applicant for modification bears the onus of satisfying me that the proposed development as modified will be substantially the same. 3. Those remarks of his Honour are consistent with those of the Chief Judge in Australian Protein Recyclers to which I have earlier adverted. In Vacik, his Honour went on to say - and to sound the cautionary note - that it was not appropriate simply to say that the nature of the development - in that case an extractive industry - if amended would be the same use and would therefore be substantially the same development. 4. Stein J went on to say that it was necessary to consider whether the proposed modified development would be essentially or materially or having the same essence as that which had been originally approved. 5. These comments by his Honour in Vacik were endorsed by the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 (Michael Standley) where the learned President endorsed, at 475, the sentiments expressed by Stein J in Vacik. 6. At the same time, the President also explained - also on 475 - that the process of permitting modification of a development consent is one which should be regarded as beneficial and facultative, notwithstanding the onus of proof relying on the Applicant. Although endorsing the view of Stein J in Vacik, the Court of Appeal in Michael Standley did not in any way set any further test for assessing whether the development was substantially the same or not. 7. However, in 1999, Bignold J gave a decision in Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 (Moto), where his Honour, after dealing with the facts of the proposed modification development, went on to say, at [55] and [56]: 55 The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. I interpolate that the position now is as required by s 4.55(2)(a) that I must be satisfied that it is essentially or materially the same as the development for which consent was originally granted. That, although differing somewhat from what his Honour described, causes no particular difficulty in the present circumstances. His Honour then went on to say: 56 The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 1. That test - that is a two-stage test of considering the proposed modified development - is that which is currently required to be addressed. The quantitative assessment 1. I therefore need to turn to, first, the quantitative differences between that which is proposed in this modification application when compared to that which was originally approved. There is to be an increase in height between that which was approved and that which is now proposed to be approved. 2. If one has regard to the lift overrun in the centre of the roof plate of the building, there will be an increase in height of 4.1 metres. If there is to be merely a consideration of the increase in height of the overall roof plate, given that it is at least reasonably arguable that the lift overrun is not visible from the street and is de minimis in extent, then the increase in height of the roof plate is a little over three metres. 3. Similarly, the increase in the floor space of the building is of some 420 square metres, going from a little over 4,200 square metres to a little over 4,600 square metres, an increase of approximately 10%. In each of those calculations I am satisfied that the increases - being entirely compliant with the Council's controls - cannot be regarded as being quantitatively inappropriate so as to modify - if permitted - the development to be in a form that would not be substantially the same as that for which consent was granted in the first instance. The qualitative assessment 1. I therefore need to turn - in dealing with matters qualitative to matters that are called up by s 4.55(3) of the EP&A Act. They involve me assessing, firstly, the matters that I have described from my 2015 decision described first in sequence in these proceedings, although set out second in s 4.55(3), and then turning to the merit matters called up by s 4.15(1) (which are the merit matters that had formerly been set out in s 79 (c) of the EP&A Act, prior to the adoption of the Dewey decimal numbering system for the EP&A Act from 1 March 2018). 2. The matters that are contained in s 4.15 contain no material difference whatsoever to the matters that were called up for consideration in September 2015. There are a number of matters to be observed in this regard. The first is that during the course of the hearing before me, I raised with counsel for the Applicant my concerns about some inconsistencies in depiction of the plans relating to the proposed communal open space on the uppermost level. 3. I also raised the issue for consideration as to whether potential modifications to that level, and to the level immediately below, might be able to be contemplated in order to provide further amelioration to what might be the impacts of the proposed modified development on the apartment block within which Mr Colgan's apartment is located. 4. Following an adjournment to permit those matters to be considered by the Applicant and those advising him, a proposal was put forward which would modify the proposed level eight floor plan and the proposed level seven floor plan by pulling the eighth floor slab to the north and reducing the floor area of the ensuite bathroom to the apartment proposed for the seventh level. 5. For the level eight floor, to have the screening around the portions of the communal open space which had earlier intended to be by brick wall to be replaced with translucent glass screens. 6. Both amendments would have - in my view - significant beneficial impacts on the apartment block within which Mr Colgan's apartment is located. 7. The pulling back of what would become a level seven apartment floor space provides a further beneficial effect for that apartment block compared to the plans that were approved in 2015. Merit matters 1. On matters of merit, although it was submitted to me by Ms Pearman that I ought not have regard matters of merit in these proceedings, I reject that submission as I am satisfied that the statutory imperative contained in s 4.55(3) mandates that I do so. 2. The position with respect to the merit assessment of the proposed modified development, is that the experts now agree: * first, the 2015 development as approved, although not approved following a design competition, nonetheless, in its approved form represented design excellence; * second, that although this is a modification application and the provisions of cl 6.2(1) of the SLEP no longer call up the necessity for a design competition as a result of the breaching of the 25-metre height constraint proposed by this modification application, nonetheless, it is the agreed position of the experts that that which would be the result of any approval granted in these proceedings, would be a building which would satisfy the test of design excellence. 1. That latter conclusion was reached by the relevant experts on the basis of the plans which did not incorporate the beneficial effect of the withdrawal to the north of the areas on proposed level eight and the revised level seven. 2. Those amendments - being in themselves beneficial - can only be an added bonus to that agreement as to design excellence. Solar impacts 1. The only matters that had remained in contention in these proceedings, but which had been resolved by the expert conferencing process, had been the question of whether or not there were adverse solar impacts as well as the design matters. 2. Those solar impacts were considered by the Council's expert, Ms Cronin, and the Applicant's expert, Mr King. They filed a Joint Expert Report in which they concluded, in Section 2, what were the impacts of additional overshadowing if the modification application was to be approved on four apartment blocks to the south or south-east of the development site. With respect to 37 Foster Street, that being the apartment block within which Mr Colgan's apartment is located, their conclusion was that the sunlit area is only reduced rather than eliminated. 3. Natural light is diminished to a negligible degree and the impact was considered acceptable. The acceptability of that impact on that apartment area - it being the matter to which Mr Colgan took me and to which I will return briefly in a minute - will be reduced at least to some extent as a result of the alterations to the proposed level seven and level eight designs. Natural light is important to Mr Colgan's apartment as the amount of direct sunlight that he receives is comparatively constrained, both by shading from what will be the approved development but also, in part, shading by his own building. 4. The primary areas which receive direct sunlight that will be impacted as a result of this proposed development are two windows in an access corridor, an access corridor which is - although having a pleasant outlook directly to the north to a limited portion of the skyline to the south of Hyde Park. It is nonetheless an access corridor rather than even a secondary living space within that development. 5. The conclusions which were reached by the experts with respect to 62‑64 Foster Street, 230 Elizabeth Street and 56-60 Foster Street were that there were no non-compliances resulting from the proposed additional development. As to satisfaction with the apartment design code, minimum requirements for solar access as a percentage of the apartments within a development, I have also considered the detailed conclusions that are set out on pages 4 and 5 of Exhibit 5, which is the first Joint Expert Report of the solar experts. 6. I am satisfied that, although there will be some reductions in sunlight to some of the apartments, nonetheless, in the context of a densely developed urban area and the requirements of the apartment design guide, those impacts are satisfactory. The experts produced a Supplementary Expert Report which dealt in more detail with the impacts on Mr Colgan's apartment. I have carefully considered that and noting that there will be a beneficial impact from the modifications which have been proposed and for which leave to amend has been granted with respect to the pulling back to the north of the development on the seventh and eighth levels. 7. The impact previously considered by the experts to be acceptable on Mr Colgan's apartment will only be impacted beneficially as a result of those amendments to the plans, I am therefore satisfied that the second element requiring to be considered as a result of the Moto decision process, is that the proposed development - if permitted to be modified - will be qualitatively satisfying of the requirement in s 4.55(2)(a) of being substantially the same as the development which was approved in 2015. Directions 1. The context of those conclusions is that, subject to the directions which I will make, the appeal is to be upheld. I therefore give directions to permit that to occur. I indicated, however, yesterday that I would examine Exhibit C and indicate what I considered to be the plans that - at a very minimum - needed to be revised to reflect the changes to levels seven and eight and to make the elevations consistent with the plans for those levels. 2. It seems to me that, at the very minimum, the plans which need to be revised are as follows: 11.1, 12, 17, 19, 20, 20.1 and 21. There may be others which, on material consideration by the architect for the project, might also require modification. I do not consider that the pre- and post-modification comparative plans need to be filed in order for the Court and the Council to have plans which will reflect the development arising from my upholding of the appeal. 3. I therefore give the following directions. 1. Revised settled orders in two stages as required by the Court for the granting of modifications to development consents are to be filed and provided to my Associate, electronically as a Word document, by the close of business on 23 May 2018. Those orders will need to incorporate two annexures, one which shows the modifications to conditions, including a comprehensive list of those plans that will be applicable to the modified development, omitting the persiflage of the list of past plans. Second, revised consolidated conditions of consent so that there will be a single document that contains the totality of the operative conditions for the proposed development. They will need to be in a form that comprise Annexures A and B to the orders; 2. Revised settled plans reflecting what became the handwritten amended version of Exhibit C for which leave was granted during the course of the hearing (and I note parenthetically, with respect to which the Council pressed no matters of costs arising under what had been the former s 97B of the Environmental Planning and Assessment Act 1979) are to be filed by the close of business on 23 May 2018; and 3. I set the matter down for mention before me at 4.00 pm on 24 May 2018 for directions; but 4. If (1) and (2) are complied with, I will make the orders in chambers to uphold the appeal and give effect to the approved modification, and I will vacate the mention in (3). ********** 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: 22 May 2018