Land and Environment Court New South Wales

• Medium Neutral Citation: Meriton Property Services Pty Limited v Minister for Planning and Infrastructure [2013] NSWLEC 1260
• Hearing dates: 11, 12 & 13 December 2013
• Decision date: 16 December 2013
• Jurisdiction: Class 1
• Before: Moore SC at [1] and [113]; Pearson C at [73]

Decision

See para [114]

• Catchwords: DEVELOPMENT MODIFICATION - Part 3A Project - Tests for jurisdiction - Merits of application; PLANNING PRINCIPLE - First element of planning principle in Super Studio v Waverley Council superseded by Davies v Penrith City Council - Second element in Super Studio remains
• Legislation Cited: Environmental Planning and Assessment Act 1979; Interpretation Act 1987; Land and Environment Court Act 1979; Willoughby Local Environmental Plan 2012
• Cases Cited: Barrick Australia v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733; Davies v Penrith City Council [2013] NSWLEC 1141; Moto Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298; North Sydney Council v Michael Standley and Associates Pty Limited (1998) 97 LGERA 433; Pafburn v North Sydney Council [2005] NSWLEC 91; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Super Studio v Waverley Council [2004] NSWLEC 91; Vacik Pty Limited v Penrith City Council (Stein J, unreported February 1992)
• Category: Principal judgment
• Parties: Meriton Property Services Pty Limited (Applicant); Minister for Planning and Infrastructure (Respondent); Iglu No. 202 Pty Ltd (Intervenor)
• Representation: Counsel; Mr C McEwen SC with Mr A Pickles (Applicant); Ms H Irish (Respondent); Mr J Lazarus (Intervenor); Solicitors; Ms Z Nasser, Meriton Property Services Pty Limited (Applicant); Ms L Sims, Department of Planning and Infrastructure (Respondent); Mr S Simington, Lindsay Taylor Lawyers (Intervenor)
• File Number(s): 10810 of 2013

Judgment

1 SENIOR COMMISSIONER: Part 3A was introduced to the Environmental Planning and Assessment Act 1979 (the Act) to give a discretion to the Minister for Planning (or the holder of that office from time to time) to override local controls and to apply differing tests for the purposes of assessing and proving major projects of various types provided in the Part.

2 Although the local controls were overridden by Part 3A, the Minister is given a discretion to consider local planning controls in an environmental planning instrument, that being a term of art under the Act, if the Minister considered it appropriate to do so.

3 Although Part 3A is now repealed, certainly ongoing rights were preserved after the repeal to protect the ongoing operation, in a planning sense, of projects that might have been approved or those projects that still had not yet been approved. In this case, relevantly the provisions of s 75W of the Act permitting modification of an approved project have been maintained.

4 We have structured this decision in a fashion that has me delivering that portion of the decision that relates to jurisdictional issues raised by the intervener together with the broad planning issues that have been involved. My colleague, Pearson C will deal with the details of the objections; matters arising from them and matters of detail concerning the conditions of development consent as we have concluded that the modification should be approved subject to some changes.

5 The structure of Part 3A is set out in s 75B(1) which sets out the nature of the possible developments that can be covered by approvals under the Part. In the present circumstances, the approval for the project at Chatswood that is the subject of this appeal was a result of the classification of the project as a major project under Part 3A because the proposal was for a development that was a residential/commercial/retail project with a capital investment value more than $50 million and having the importance of achieving stable regional planning objectives-they being triggers that permitted Part 3A to be invoked as a consequence of cl 13 of sch 1 of State Environmental Planning Policy Major Projects 2005 in force at the time of the making of the application.

6 The Minister gives approval pursuant to s 75J of the Act and only does so after considering the Director-General's report on the project and advice and recommendations contained in those reports and any findings or recommendations of the Planning Assessment Commission following a review of the project.

7 In this instance, for the modification application, the Minister made a delegation to the Planning Assessment Commission to permit the Planning Assessment Commission to determine the modification application. The Planning Assessment Commission originally rejected the proposed modification that is the subject of this appeal but as I will turn to shortly, following discussions between the parties pursuant to the s 34 conciliation process in the Court, the Minister no longer adheres to the Planning Assessment Commission's rejection of the proposal and now supports a revised version of the modification proposal.

8 Section 75A of Part 3A contains definitions, the relevant one of which for the purposes of these proceedings is that of an approved project which is defined to mean a project, to the extent that it is approved by the Minister under this part, relevantly given that this is not a concept plan. The power given to the Minister to modify the proposal arises under s 75W and modification of approval is defined in that section as meaning changing the terms of a Minister's approval including revoking or varying a condition of the approval or imposing an additional condition of the approval and changing the terms of any determination made by the Minister under div 3 in connection with the approval.

9 Section 75W sets out the process by which modification is initiated and considered:

75W Modification of Minister's approval

(1) In this section:

Minister's approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.

modification of approval means changing the terms of a Minister's approval, including:

(a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and

(b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval.

(2) The proponent may request the Minister to modify the Minister's approval for a project. The Minister's approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.

(3) The request for the Minister's approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.

(4) The Minister may modify the approval (with or without conditions) or disapprove of the modification.

(5) The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal.

(6) Subsection (5) does not apply to a request to modify:

(a) an approval granted by or as directed by the Court on appeal, or

(b) a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

(7) This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

10 Section 75W(2) permits a proponent to request the Minister to modify the Minister's approval for a project. Section 75W(3) requires that the request be lodged with the Director-General and the Director-General may then notify the proponent of any environmental assessment requirements with respect to the proposed modification before the Minister will consider the modification. Then, at the conclusion of consideration of the matters to which I have already referred, the Minister may determine to modify the approval with or without conditions or disapprove of the modification.

11 In these proceedings, the intervener (to whose submissions we will return) made something of the fact that the Director-General did not notify the proponent of environmental assessment requirements. We are of the view that that is a matter that might best be regarded as a red herring-as there are a number of reasons why the Director-General might not notify any environmental assessment requirements. We are not required to choose between those options-those being that the amendments were so insignificant that they did not require such requirements to be provided or, equally validly in our view, in an abstract sense, that the information provided by the proponent was so comprehensively satisfactory in addressing any possible matters that might need to be considered by the Director-General that there was no need to formalise any requirement for further material to be provided.

12 The particular project that we are dealing here is something that was given approval by the then Minister for Planning on 28 September 2010. Project Application MP09_0066 was for a commercial and residential development of the Thomas Street carpark site at Chatswood. It comprised two buildings, one on the northern portion of the site comprising a three storey retail/commercial podium and a 26 story residential tower above and the second, on the southern portion of the site, comprising a three storey retail/commercial podium and an 18 storey commercial tower above. A five level basement carpark containing 506 carparking spaces-including dedicated to Willoughby Council 250 public carparking spaces to compensate for the removal of the public carparking that had previously been provided in the Thomas Street carpark was incorporated.

13 There was to be provided public accessible open space and a through site pedestrian link and a vehicular right of way between Thomas Street and Fleet Lane (Fleet Lane having been closed at its western end and portion of it incorporated in the carpark site when it was sold to the proponent.)

14 The appeal against the refusal of the Minister's delegate, the Planning Assessment Commission, was subject to an application for expedited hearing before the Court and there is no reason in this decision to canvass the reasons for the granting of such expedition. However, concurrently with the preparation for the hearing that we have undertaken, a s 34 conciliation process was undertaken by O'Neill C on 22, 26 and 28 November. On that final date, our colleague terminated the conciliation conference but noted that it was likely that there would be consent orders arising. The reason for that was that the Minister wished to notify objectors of the scope of the proposed consent orders and provide them with an opportunity to be heard further concerning them.

15 We note, in passing, that, for the purposes of these proceedings, the parties have provided us with the necessary waiver pursuant to s 34(12) of the Land and Environment Court Act 1979 to be aware of (as necessary) matters that transpired during the course of the conciliation conference.

16 The expedited hearing was set down for three days commencing on 11 December. Prior to that, an application for joinder by Iglu No 202 Pty Ltd (Iglu) had been made, that company being the proprietor of a building that is under construction adjacent to the south-eastern corner of the site that is the subject of these proceedings. On 29 November, orders were made granting limited participation pursuant to s 38(2) of the Land and Environment Court Act in the following terms:

Iglu No 202 Pty Ltd be granted leave under s 38(2) of the Land and Environment Court Act to be separately represented as if it were a party and to cross-examine witnesses and make submissions in connection with the question identified in para 11 of pt A of the respondent's facts and contentions, namely whether the application is properly characterised as an application for modification of approval within the meaning of s 75W of the Environmental Planning and Assessment Act.

17 Paragraph 11 of the Minister's Statement of Facts and Contentions reads as follows:

The present application is being dealt with as an application for modification pursuant to s 75W of the EPA Act. It is incumbent on the Court as the decision maker to satisfy itself that the mod 6 application is properly so characterised an application for modification with the meaning of s 75W. See Barrick Australia Ltd v Williams (2009) 75 NSWLR 733 at 748, para 38. This involves an evaluative judgment as to whether the application is a request to modify the current approval in the sense of changing the terms of that approval.

18 The present application, that is proposed Modification 6, arises after a number of modifications have already been approved by the Minister (without the controversy of court proceedings) on a number of occasions in the past. On 6 December 2013, as a consequence of the outcomes of the conciliation conference, the applicant was granted leave to rely on amended plans and those amended plans are the subject of these proceedings and are now known as revised Modification 6.

19 The result of that is that revised Modification 6 effects a range of changes of varying types to the description of the project contained in Modification 3. The now proposed consent orders were not embodied in a s 34 agreement in order to permit further opportunity to the objectors provide the basis for these consent order proceedings. My colleague will deal with the questions raised by the objectors later.

20 Pursuant to the leave granted to Iglu, Mr Lazarus of counsel made a number of submissions to us concerning the bases of why, in conformity with matters contained in para 11 of the Minister's Statement of Facts and Contentions, we should not regard ourselves as having jurisdiction to deal with the matter as a modification application.

21 The Court of Appeal discussed the scope of modification applications under s 75W on an appeal by Barrick Australia v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733 against a decision of Biscoe J in Class 4 proceedings. The lead judgment in Barrick was written by his Honour Basten JA with whom McColl JA agreed. A third judgment, by Sackville AJA was provided that differs in some respects from that of the agreed majority position.

22 The task that arises for us from Barrick is not dealing with a question of jurisdictional fact but of satisfying ourselves that the proposed modification application falls within the scope of s 75W, (see para 38 of Basten JA's decision). This is to be distinguished from the task more conventionally faced by Commissioners of the Court arising out of s 96(1A)(b) of the Act where we are regularly required to determine whether:

The development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified if at all.

23 What we are undertaking is an entirely different process from that followed in the line of authority dealing with that s 96 proposition that commenced with the decision of Stein J in Vacik Pty Limited v Penrith City Council (Stein J, unreported February 1992) through the decision of the Court of Appeal in North Sydney Council v Michael Standley and Associates Pty Limited (1998) 97 LGERA 433 and more recently by Bignold J in Moto Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298.

24 Following para 38 in Basten JA's decision in Barrick, his Honour set out four matters that are ones to which we should turn our attention. The third of those matters is that which is raised by Mr Lazarus and comes from para 41 of his Honour's judgment-para 41 being a matter to which we will return later. Paragraph 41 reads as follows:

Thirdly, on any formulation of the limits of an appropriate request, an evaluative judgment is required as to the scope of the modifications for which the Minister's approval is sought. That will involve not merely noting changes to the description of the project, but consideration of the environmental consequences. These are matters which will fall squarely within the assessment and investigation to be undertaken by the Minister and by the Director-General.

25 Mr Lazarus expanded upon the need for that evaluative judgment to which Basten JA referred in para 41 by taking us to an element contained in his Honour's decision at para 53 where his Honour said, amongst other things:

Construing s 55 in its context, it is clear that the modification of an approval was something intended to have limited environmental consequences beyond those which had been the subject of assessment.

26 At this time, it is appropriate to note that the definition of modification contained in s 75W(1) is an inclusive definition-that is it adds the word "including" after the general terms before proceeding to expressly provide for two elements to be included in the definition. It is not, self evidently, to be intended as an exhaustive definition.

27 Mr Lazarus submitted to us in, both his written and oral submissions, that there were three matters that should lead us to conclude that the modification power in s 75W is limited and should not be applied to this application. It is convenient to set out, in summary, those contentions in his submissions.

28 First, that the inclusive nature of the definition and the two elements that are specifically included by it evinces an intention to have a narrow definition that is constrained rather than one that, as submitted by Mr McEwen SC of counsel on behalf of the applicant, is effectively unconstrained provided it is sufficiently broadly consistent with the project that has been approved.

29 Second, Mr Lazarus suggested that the time limit of 40 days in s 75W(5) suggests that the modifications should be simple and confined and not require detailed assessment.

30 Third, that, if the legislature intended that rigorous assessment projects should be bypassed or not apply in the case of an application to modify the approval so in a fashion that might produce a radically different development, this was not intended and that the modifications that should fall within the scope of s 75W would be those that were of, in my words, a trifling or narrowly confined and minimal basis.

31 He said that as a result of those three concerns, three steps followed for us to address. First that we should satisfy ourselves we have jurisdiction. Second, that we must make an evaluative judgment based on not merely the description of the proposed changes but on the impact and third, that, if we were to conclude that the modification will result in a radically different development, they being akin but not identical with the words that were used by Biscoe J and were the subject of the successful appeal to the Court of Appeal, we should reject the application.

32 We accept that we should have regard to s 75W(1) and the inclusive definition. However, we reject his conclusions as the definition is essentially, from the naked face of the words, an inclusive one and not intended to be confined or in any way narrowed by the elements that are specifically brought within it by ensuring that the nominated terms are left as inclusions without there being any ambiguity as to them forming part of the matter.

33 Thus, as a consequence, we are satisfied that the revoking or varying of a condition or imposing additional conditions or the changing of determinations made by the Minister under Div 3 do not act to narrow the words "Changing the terms of a Minister's approval."

34 In passing, we note that the terms of the Minister's approval include a listing of all of the matters that are relevant including identification of the plans and, that if we have the power and the Minister were to have the power (as he would) to vary the terms, that can vary any term that incorporates the numbers of the plans-that being the effective way that the modifications are incorporated in the conditions of consent.

35 We turn to his proposed implication that the limit of 40 days in s 75W(5) suggests that they should be simple and unconfined proposed changes. We reject this proposition. The broad scheme of the Act and its regulations set time limits as triggers for deemed refusal appeals. These vary and there is no reason given for any of the various times that are incorporated in the legislative scheme save that matters of somewhat greater complexity may have a longer period within which the assessment can take place prior to the deemed refusal provisions being triggered.

36 We do note, however, that, in Part 4, quite complex development applications can also fall within a period similar to the period that applies to these modification applications and the Act do not necessarily limit in any way such applications to minor or trifling matters. We are satisfied that there is no proper constructional basis upon which we should adopt the second of Mr Lazarus' submissions.

37 His third suggestion is that the legislature could not have intended that the rigorous assessment requirements for a project application could be bypassed by a modification where there was a modification that produced a radically different development. The concept of the intent of the legislature is one that is permitted to be taken into account by virtue of the provisions of s 34 of the Interpretation Act 1987 where a variety of matters in sub s (2) (e), (f) and (h) are permitted to be taken into account.

38 Mr Lazarus has not taken us to any of these matters to demonstrate that there was some intention of an express nature of the type he claims intended by the legislature. The proper approach, in our view, is to adopt that dealt with by the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at para 70 where the majority said that a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.

39 We are satisfied that if Mr Lazarus' submissions on this point were to be adopted that it would be cacophony rather than harmony that would result. We are therefore satisfied that Mr Lazarus fails in his submission on the jurisdictional point. It is not necessary, as a result, to deal at length with the submissions that were made capably by Mr McEwen on behalf of the applicant (in the written submissions for the applicant) but we do note as well that they drew attention to the matters set out in para 52 of Basten JA's decision in which his Honour said:

The very concept of a project is amorphous in a sense which is not true of an object such as a car. Although there will be circumstances in which it is not clear which descriptor applies, it is usually possible to distinguish between a modified vehicle and a replacement vehicle. By contrast, a project, at least in part, a process and may be characterised or described from a variety of different perspectives.

40 We note that in, Barrick, the various members of the Court adopted the position that it was not appropriate to adopt some prescriptive formulation consistent, for example, with the sort of formulation that is in s 96 of the Environmental Planning and Assessment Act to set out a characterisation test for modification applications under s 75W. We accept that some changes to a proposal, using a neutral word, might be so extreme as to fall outside the concept of modification. For example, to give an instance that is quite clearly fanciful (as well as being entirely unrelated to the present proposal) if there were to be an application for an Olympic swimming pool in the upper Hunter Valley granted consent pursuant to Part 3A, it would be quite clearly absurd to deal with an approval modification application to turn it into an open cut coal mine.

41 However, here we are satisfied that there is a sufficient linear descent from Modification 3 to revised Modification 6 to be certain that this is, as a matter of fact, a series of modifications that is proposed. We do not, however, propose that the "sufficient linear descent" description is some sort of test, it is merely the appropriate term to apply to the application for which we have been given the responsibility of determination.

42 As a consequence of all of the foregoing, we are satisfied that we have jurisdiction to deal with this modification application.

43 To complete dealing with the written submissions made by Mr Lazarus, however, it is appropriate to deal with his praying in aid the planning principle set out by then Senior Commissioner, Roseth SC in Super Studio v Waverley Council [2004] NSWLEC 91. In that, a matter that Mr Lazarus raised in his written submissions and which we asked the parties to address, Mr Lazarus relied on the first of the two limbs of the planning principle discussed by Roseth SC-that is that the acceptability of an impact depends not only on the extent of the impact but also on the reasonableness of and necessity for the development that causes it. The second principle that the Senior Commissioner proposed related to landscaping and is not a matter that was pressed by Mr Lazarus.

44 We observe that, consistent with what Mr McEwen SC put to us when invited to comment on this matter, that the planning principle that dealt with reasonableness and necessity for impacts on neighbouring properties had also been propounded by Roseth SC in a case called Pafburn v North Sydney Council [2005] NSWLEC 91, a case which I had had the necessity to review in Davies v Penrith City Council [2013] NSWLEC 1141.

45 As a consequence of Davies, the anthropocentric element of "necessity" was removed from the planning principle in Pafburn and the revised planning principle published in Davies is the planning principle adopted by the Commissioners of the Court for the future.

46 In this instance, following a review by the Commissioners of the Court of the planning principle in Super Studio, we have reached the conclusion that, with respect to the first point of that planning principle, it should no longer be observed and that the planning principle that is set out in Davies is the appropriate planning principle for that element in the future.

47 With respect to the second element of the planning principle in Super Studio, it should, at least for the time being, remain-although it may be appropriate, on some future occasion, for the Commissioners of the Court to revisit and perhaps expand on that.

48 Having found that we have jurisdiction, the tasks that now lie for us are set out in, in our view, in paras 41 and 53 of Barrick. Paragraph 41, Basten JA described the process as being not merely noting changes to the description of the project but considering the environmental consequences of it. In para 53, his Honour says, "Construing s 75W in its contexts, it is clear that the modification of an approval was something intended to have limited environmental consequences beyond those which had been the subject of assessment."

49 It is therefore appropriate, in this context, that first we note the detail of the changes between Modification 3 and proposed revised Modification 6. Helpfully, they are set out, subject to some minor questions of detail, in a chart in a table in the evidence of Mr Neustein, the planner giving evidence on behalf of the applicant. They are set out at p 3.

	MOD_3	Amended MOD_6
Use
Building 1	233 Residential Apartments	286 Residential Apartments
Building 2	302 Services Apartments	337 Serviced Apartments
Height
Building 1	199.9 RL (29 storeys)	225.60 RL (38 storeys)
Building 2	197.20 RL (29 storeys)	209.60 RL (33 storeys)
GFA	45,148m2	51,426m2
FSR	10.94:1	11.89:1
Apartments
Building 1	233 residential apartments	286 Residential Apartments
Building 2	302 serviced apartments	337 Services Apartments
Car Parking (including 250 public spaces)	508 spaces (fully within the 5 basement levels)	573 (in 5 basement levels and 3 podium above ground levels)

50 We also note that, in addition to the numerical matters set out in Mr Neustein's table, there are a number of other matters that arise in the modification. First, there is a significant increase in the podium height to the south. There is, as a consequence of the revision having a wrap around of apartments incorporated in the outer edges of the southern side of the above ground carparking in the southern podium, a greater degree of activation to the streetscape of Albert Street. There are modifications to the through site thoroughfare. There are changes to the access arrangements for the site on both its front edges to Thomas Street and to Albert Street and there are changes to the through site right of way for public access.

51 Having noted those changes, it is then appropriate to ask ourselves what are the matters potentially giving rise to environmental consequences as his Honour exhorted us to then turn. Those changes, we are satisfied, fall under the following broad headings:

• overshadowing of Chatswood Oval and the croquet club being increased;
• non-compliances with the Willoughby Local Environmental Plan 2012 and of its subordinate Development Control Plan;
• changes to the parking, changes to the traffic impacts;
• the changes to the podium to the south;
• the increase in the amount to be paid to Willoughby Council as a consequence of the voluntary planning agreement and the public benefit that is to be derived therefrom; and
• questions of disabled access.

52 We are required to assess if all of these impacts are ones that have, as Basten JA referred to in para 53 of Barrick, limited environmental consequences beyond those which had been the subject of the assessment. It requires us, in our view, not simply to deal with an accumulation of all of the consequences as some might be regarded as positive and others as negative, but does require us to assess each of the consequences and then reach a broad conclusion about what the outcome of that might be.

53 I turn, first, to the question of overshadowing. The planners who gave evidence, Ms Miller on behalf of the Minister and Mr Neustein on behalf of the applicant, agreed that there was a minor increase in the overshadowing of Chatswood Oval and that there were other minor changes in overshadowing but that these were comparatively small as a consequence of the speed of transition of the shadow as the sun moved through the sky. It was their conclusion that there was, in conformity with the relevant objectives set by the council, broad compliance with those and that there was, to the extent that there was a negative consequence, only a minor matter of impact compared to the extent of the overshadowing that arose from the approved modification 3. As a consequence, we regard that as being a minor impact in our assessment to be added to what other impacts we have considered.

54 I turn now to the Willoughby Local Environmental Plan 2012 (the LEP). Section 75J(3) says that the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not otherwise, because of s 75R, apply to the project if approved. Ms Miller agreed that it was appropriate to have regard to the LEP and we accept her conclusion in this regard.

55 The Willoughby DCP (which was also the subject of some discussion between the experts and their written and oral evidence) is not an environmental planning instrument for the purposes of s 75J(3) of the Act. However, we are satisfied that it would be prudent, based on s 38(2) of the Land and Environment Court Act, to have regard to the provision of the Development Control Plan. This permits us, as it were, to take regard to the case mounted by the objectors at its highest without necessarily expressing a conclusion as to whether the now repealed Part 3A intended to exclude the consideration of other instruments that might otherwise be brought in by s 38(2).

56 We have also had regard to a Council policy described by Councillor Copock who gave evidence as the "bell curve for development heights" on the western side of the Chatswood central business district. The applicant does not accept that there is a breach of the bell curve but, again for the purposes of this decision, it is appropriate to assume that there is such a bell curve; that it is a properly formulated Council policy; and that we should have regard to it-that is to take that position at its highest contra the applicant.

57 The controls set out various matters concerning the permitted heights, permitted floor space ratio and desired future character of the Chatswood central business district. We have concluded that there is no reason to deal with them in detail because we have concluded that the actions of the Minister, over a period of time, reflect what the Minister has determined should be the desired future character of the area-that being a desired future character by performance that is potentially substantially contrary to the local planning controls.

58 Mr Lazarus put to us that there was a tension as a consequence of the LEP being made by the Minister with departmental advice as well as extensive local input and the power of the Minister in Part 3A to override the controls that the Minister him or herself made by the adoption of (and the process for) the Local Environmental Plan. We do not see any fundamental tension of the nature to which Mr Lazarus took us. We are satisfied that the Minister, consistent with the approach set out in the now repealed Part 3A, was entirely free to exercise the Minister's judgment as to whether a particular project should be permitted and permitted to override local controls. Those actions of the Minister, we are satisfied, reflect the desired future character to the extent that that which the Minister has approved (not only in this project but in other projects on the western side of the Chatswood central business district or straddling the interchange site) are contrary to those local controls.

59 Given that the Minister's actions have set the desired future character, we are certainly of the view that, at the very worst for the applicant in these proceedings, there is a limited negative consequence of those breaches and that a better view is that it is more likely to be a neutral impact given the context of the remainder of the projects that the Minister has approved.

60 We now turn to parking and the right of way. Mr Hollyoake for the applicant and Mr Rogers for the Minister gave expert evidence on this point. Their position was that there was a satisfactory overall result for parking and that, although there were said to be some off site traffic impacts anecdotally by the objectors, we observe that, on the calculations given by those experts, they agreed that there is only a minor increment in the traffic impacts.

61 We do not consider that the matters raised by Mr Lazarus concerning the incorporation of above ground parking in the podium (which was not a feature of Modification 3) provides any significant impact in itself apart from the fact that it makes the podium necessary. The impact of the podium is, in itself, a separate matter. There were a number of matters of detail arising concerning the through site right of way and they will be dealt with by Pearson C.

62 Overall, we are satisfied that the parking, right of way and traffic matters are at worst minor and again, on a better view, are likely to be regarded as neutral.

63 We turn to the southern podium. Revised Modification 6 effectively adds a multi level podium facing Albert Street. The incorporation in the revised Modification 6 of apartments wrapping around the podium as it addresses Albert Street in fact provide a number of environmental benefits, in our view, compared to the position that applied under Modification 3. They provide activation to the streetscape, they provide an element of greater interest to the streetscape and they do not provide any significant impacts in a general sense as they face Albert Street.

64 The modification was the subject of some testing, in oral evidence, as to whether various elements should be described as either substantial or significant or some combination thereof but we have derived little assistance, (in fact no assistance,) from that aspect of semantic juggling that arose during the course of that discussion.

65 It is, however, fair to note that the impact on the Iglu development by Modification 6, (and whether one describes it as substantial or significant is, as I have noted, irrelevant,) as a consequence of the erection of what was originally proposed (and remained in revised Modification 6) a multi level blank wall presenting to the Iglu development. My colleague Pearson C will deal with matters of detail arising from the discussion during the hearing of the presentation of that wall to the Iglu development.

66 However, it is also appropriate to note at this time that, at the time Iglu applied for its development approval, the application that had been approved for this site did incorporate a multi level podium towards Iglu and that, although Iglu received a benefit of a lowering of that podium as part of Modification 3, it was a benefit gratuitously given and did not form part of or an integral matter of consideration in the assessment of the appropriateness of the Iglu development itself.

67 Overall, we are satisfied that the consequences of the podium to the south are a minor negative impact at worst.

68 The public benefit arises because there is to be an increase in the voluntary planning agreement contribution to be made by the proponent to Willoughby Council, that is an increase of some $6 million over the voluntary planning agreement contribution that would have arisen from modification 3. There is significant potential for beneficial environmental consequences as a consequence of this increase.

69 The extent to which that might be provided as an environmental benefit to the community will depend on what decisions the council makes with respect to that funding. However, we are satisfied that in the context of what Basten JA said in para 53 that a modification should only have limited environmental consequences beyond those which had been the subject of the assessment, we do not believe that his Honour could conceivably have contemplated that if there was a significant environmental consequence of a positive nature, that that should be regarded as a reason for refusing the modification itself. The modification to the voluntary planning agreement is, in itself, a potentially significantly positive environmental consequence of the modification.

70 For the purposes of these remarks, it is appropriate to note that the change from Modification 3 to revised Modification 6 is a positive change to the Modification 3 design for disabled access through the site.

71 It therefore follows that there are two final questions for us to address. One is what is to be the outcome of the assessment process of the modifications for which consent is being sought and, second, what is the resultant development itself when broadly assessed if modified. The test for modification is that which starts in para 41 of Barrick and then continues to para 53 of Barrick. It is our view that overall, the environmental consequences of the modification application are, at worst, very minor and are potentially positive and that there is no reason on the Barrick pathway that we are obliged to follow of saying that the modifications lack merit.

72 The test for the resulting development as modified is "Is it acceptable?" It is not something that requires us to seek or endeavour to impose design nirvana. We are satisfied, for the reasons that we have set out, that the resulting development when modified is acceptable and should be approved. The consequence of this is that the appeal should be upheld subject to the matters that will be discussed by Pearson C concerning the conditions. I will pronounce the proposed final orders at the conclusion of her remarks.

73 COMMISSIONER PEARSON: I propose to deal with the matters raised by the objectors and the conditions, first of all focusing on the objections raised by Willoughby Council to the proposed modification.

74 Willoughby Council made an objection in response to the initial public exhibition of Modification 6 which went on exhibition from 30 January to 1 March 2013. On 18 April 2013, after a meeting with the applicant where amended plans had been discussed, Willoughby Council advised that it no longer objected to Modification 6 but raised a number of matters for further consideration. Those matters included the scale, use and density of the proposal which Council regarded as being contrary to planning for the location; carparking provision and location; access issues including the driveway crossing and provision of disabled access; and areas in which the Council identified that further information was required.

75 The Council maintained its active involvement through the process of assessment by the Planning Assessment Commission including a representation at a public meeting held by the Planning Assessment Commission in August 2013. The Council's Director of Environmental Services attended and spoke at the s 34 conciliation conference previously referred to on 22 November 2013. At this hearing Ms Noni de Carvalho, Specialist CBD Planner, gave oral evidence and provided written submissions which reflected her discussions with Council officers. Ms de Carvalho made it clear that her evidence and her written submissions reflected her discussions with her colleagues, the Council being in recess and therefore there being no opportunity to obtain a formal concluded view of the elected councillors.

76 In her oral evidence, Ms de Carvalho agreed that a number of the matters raised in her written submissions (exhibit 5) have been addressed:

(1) Shortfall of carparking: that is met in part by a contribution to the cost of Council providing carparking facilities;

(2) The designation of the affordable housing units required to meet the Council's requirement of 4% of residential Gross Floor Area which is a matter that the conditions require be specified before a construction certificate is issued: Ms de Carvalho's concerns about developer contributions and the voluntary planning agreement were met by adjustments in the proposed conditions;

(3) Condition B15 of the original project approval as amended required detailed design of public carpark areas previously referred to be submitted to and approved by the Council and that required a whole of basement carparking management plan, and there was a concern raised that with the provision of additional carparking in the above ground podium that there might need to be some revisiting of that aspect of the conditions: the traffic experts have clarified that there is no public carparking proposed in the podium, and so condition B15 does not require amendment;

(4) A further concern relating to housekeeping of the additional service departments at the lower levels was also addressed.

77 The major part of Ms de Carvalho's oral evidence concerned the design of the loading dock access including movement of Council waste trucks and more generally access and egress of large vehicles. It also concerned issues of the pedestrian crossing of the right of way to the rear of Thomas Street.

78 Turning first to the movement of Council waste trucks, there was some discussion in the oral evidence as to the size of vehicle for which provision needed to be made, and it became apparent that the particular vehicle that is in fact used by Council's waste contractors is not the same as the vehicle reflected in the Council's Development Control Plan.

79 The traffic experts addressed the issue of movements of the Council waste trucks in their oral evidence, and reflecting the technical aspects of the vehicle actually used, they agreed that there might need to be and probably would be minor amendments made to at least one or two areas of the loading dock area and area providing access for waste vehicles.

80 The traffic experts were agreed that those amendments to the final design and construction could be accommodated and they were also in agreement that the movement through the site of large vehicles other than Council waste trucks is appropriate. Similar concerns had been raised by other objectors about large vehicle movements in Fleet Lane, in particular concerns raised as to the reduction in the width of Fleet Lane. In particular, the submission provided by Iglu in its written submission of 6 December 2013, repeated in on site evidence, raised concerns for the passage of large service vehicles including furniture trucks, service vehicles and access for deliveries for the Iglu development which will accommodate up to 400 student residents.

81 In that regard, the conditions provide in condition F7 for the provision of a Loading Dock Management Plan to be prepared to the satisfaction of the Council, which is to include measures to prevent additional heavy vehicles entering the loading dock when it is full, minimising conflict between cars, trucks and pedestrians. Condition F7 has been amended during the course of the proceedings to include a requirement that the swept path of the longest vehicle, including Council waste vehicles, entering and exiting the subject site (including the exit to Fleet Lane East) as well as manoeuvrability through the site are to be in accordance with the relevant standards and demonstrate acceptable operation to the satisfaction of the Council.

82 Condition F7 has been further amended during the course of the hearing to include the following provision.

The LDMP is to ensure that minimal interruption to the public right of way from Thomas Street to Fleet Lane East is caused by truck congestion and queuing from the loading dock.

83 The second of the matters raised in Ms de Carvalho's evidence concerned the pedestrian crossing at Fleet Lane East. Modification 3 provided a right of way through the site from Thomas Street to Fleet Street to be used by vehicles and pedestrians accessing Fleet Lane. Modification 6 modifies the right of way and uses it to provide access to the podium carpark and the loading dock for the site in addition to access to Fleet Lane and there have been consequential changes to pedestrian access to Fleet Lane from the through site link on the ground floor.

84 The traffic experts gave consideration to the revised Modification 6 pedestrian link to Fleet Lane and they agreed that while it is not as direct as that provided in Modification 3, it is, in their opinion, safe and appropriate subject to the resolution of the treatment of the crossing of the entry to the loading dock.

85 The traffic experts agreed that the safety issues that might arise for the pedestrian crossing of the right of way could be addressed by elevating the crossing, providing different pavement treatment to make it clear that pedestrians have priority and providing a traffic calming feature for vehicles just before the pedestrian area. Given the likely low volume of vehicle movements to Fleet Lane, on which both traffic experts agreed, Mr Rogers who gave evidence on behalf of the applicant expressed a preference for those measures without the provision of lights however he agreed that lights could be provided.

86 What has emerged from that discussion and the agreed traffic engineering evidence, which we accept, is a revised version of condition E50. That condition requires the proponent to provide a detailed design of the shared zone and pedestrian crossing in order to provide for pedestrian safety. That design has to be provided to the satisfaction of the Council, and the works completed prior to the issue of the occupation certificate for above ground works.

87 The addition to condition E50 made in the course of the proceedings has been to include that the design be generally in accordance with a specified drawing dated 2 December 2013 as annotated by hand by the traffic experts. That drawing has been provided to the Court at the conclusion of the hearing and it is annotated to require the provision of a raised pedestrian crossing at the junction of Fleet Lane and the loading dock. It indicates that there is to be boundary fencing to be an open design to allow sight lines, and it requires the provision of continuous flashing lights to warn truck drivers of a pedestrian crossing.

88 We are in agreement that the specifications in this drawing address most of the issues raised in the expert evidence, however we consider that there are two further amendments to condition E50 that should be made. The first is to provide a specific reference to the plan and to annex it to the conditions. The second, in a more substantive sense, is to amend the wording of condition E50 to include a requirement that the design provided to and approved by Council include the provision of a traffic calming device immediately before the raised pedestrian crossing. That is consistent with the agreed opinion of the traffic experts.

89 Turning now to the matters raised by members of the public in addition to those raised by Council officers, we note first of all that there were some 67 public submissions made in response to the original public exhibition of Modification 6. In order of proportion of matters raised in those submissions were issues of traffic congestion, disabled and other access to Fleet Lane, height and bulk, overshadowing and loss of sunlight, parking, podium design, pedestrian safety, the change of use, visual and amenity impacts, lack of separation to 12 Thomas Street, density and overdevelopment, noise, streetscape impacts and impacts on business.

90 Exhibit 8 is the written submissions provided by the 8 objectors who gave evidence at the s 34 Conciliation Conference. Additional submissions have also been received, notwithstanding the expedited nature of the consideration of this appeal before the Court, in response to the amended version of Modification 6 which is presently before the Court. There were nine persons, including present and former councillors of Willoughby Council, who gave evidence on site at the commencement of the hearing; four of those persons had previously given evidence at the s 34 conciliation conference.

91 The issues raised in the public submissions are reflective of those raised in response to the initial public exhibition and as reflected in the written public submissions in evidence before the Court. The issues raised included overshadowing of green space areas including the Oval, the croquet area, the playground and residential areas; overshadowing of the Remembrance Garden; traffic issues in particular existing difficulties with traffic access on Albert Avenue; access for persons with disabilities to 12 Thomas Street; the height limits in the LEP including the expectations of residents and Council and the process of scrutiny that that planning instrument had undergone; the height of the proposal, both concerning past restrictions on other developments in the Chatswood CBD and shadowing; the process of determination; the issue of the changes to the podium development, in particular the impact on the adjoining development of Iglu; the scale; and the reduction and the design of the through site links.

92 The evidence before us included written notes of the evidence given on site and there was an additional submission provided in response to the proposed draft conditions (received by the Court on 13 December 2013).

93 Considering the issues raised in those objections, turning first to access for persons with disabilities to 12 Thomas Street, we accept the evidence of the objectors that both 12 Thomas Street and 8 Thomas Street include medical practices which provide services to persons with mobility and vision impairments. The Guide Dogs Association premises are located at 2-4 Thomas Street. We accept that there is clearly a need to maintain appropriate access for persons with mobility and vision impairments to those sites. It is common ground that before the sale of the site of this development, which was the carpark operated by Willoughby Council, access for persons wishing to access those premises in Thomas Street was across the open air carpark then up a ramp from Fleet Lane to the western side of 12 Thomas Street. The present arrangement with the blocking off of the western part of Fleet Lane retains access up the ramp from the end of Fleet Lane. The proposal in revised Modification 6 is for the provision of disabled carparking spaces in the Meriton development, the use of a lift to the basement level and accessing the existing ramp at Fleet Lane at the loading dock entrance.

94 There were two approaches identified in the evidence before the Court to addressing the issue of continuing access for persons with disabilities to Thomas Street. The primary response is to consider the acceptability of the proposed arrangement for the use of the lift and access to the ramp. The most significant issue raised in that regard was the safety concerns for potential conflict between persons traversing the pedestrian crossing at the entrance to the loading dock. We are satisfied that those matters have been addressed in the proposed amendments to condition E50.

95 The second response to addressing this issue was a matter raised in oral evidence by Mr Neustein, which was that there might be the potential to use an existing lift which is located outside 2-4 Thomas Street. The evidence of Ms de Carvalho was that this lift was provided as part of a requirement relating to the upgrade of the premises at 2-4 Thomas Street. The lift is on the title of 2-4 Thomas Street, but there is an arrangement whereby the users of 6-8 Thomas Street have access, and the costs of maintenance are shared.

96 Access for persons in wheelchairs or with other mobility issues would require the removal of a short wall which presently impedes access between 8-10 Thomas Street and 12 Thomas Street. The applicant has offered to provide the sum of $5,000 to assist in extending access to the users of 12 Thomas Street and including the removal of the wall. It proposes to do so through a Statement of Commitments which, as drafted, would require payment of $5,000 to the Owners Corporation of 12 Thomas Street once evidence has been provided that agreement has been reached for the provision of the disabled access and an agreement for the use of the lift.

97 Section 75J(5) of the Environmental Planning and Assessment Act provides the power to impose such a condition:

(5) The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).

98 The arrangement proposed by the applicant is dependant upon there being agreement reached with the owners of 2-4 and 6-8 Thomas Street (who have their existing mutual arrangement) and the owners of 12 Thomas Street who are, on the applicant's proposal, to receive the contribution. The Minister's submission was that it is not clear whether this amount will in fact cover the cost of the works required to remove the wall presently precluding access to 12 Thomas Street or the legal costs of extending the easement. The basis for nomination of the amount of $5,000 is not clear, and further, it is proposed to be a one-off payment with no reference to requirements for any ongoing maintenance. We note the submissions made by Meriton that there could be no objection to making minor amendments to this proposal.

99 We agree that there is a benefit if additional access for persons with a disability can be provided through the avenue of extending the use of the lift outside 2-4 Thomas Street in addition to the proposed route from the carparking spaces in the Meriton development. We propose that the Statement of Commitments and the associated condition F16 be amended, however, so that it provides that once agreement has been reached for the provision of access in the form contemplated, that the proponent pay the sum of $5,000 to the owners of the lift and additional sum of $10,000 to the owners of 12 Thomas Street. We are of the view that the requirement for this additional amount would better reflect the concerns raised by the Minister, and the uncertainty as to the likely costs of the work required and associated legal and other costs.

100 However, we note that the parties have not had the opportunity to comment on this amendment and we direct that they provide any response to this proposed amendment of the Statement of Commitments and condition F16 within a period of 48 hours.

101 The second major issue raised by the objectors relates to traffic, in particular along Albert Avenue. The question of traffic congestion was the most significant of the concerns raised in public submissions. The general concerns about traffic congestion and additional vehicle movements were, as previously referred to, addressed by the traffic experts who in their joint report provided an assessment of the additional traffic generation of revised Modification 6. Based on their agreed 0.16 vehicle movements per unit per hour, they agreed that there would be a likely increase in vehicle movements of a total of 13 vehicles in each of the morning and afternoon peak periods.

102 One of the particular concerns addressed by Mr Rodwell, who gave evidence on site and made a submission on the proposed conditions, related to proposed condition C47 which proposes the provision of a raised concrete median along the centre line of Albert Avenue to restrict access to left in, left out for the proposed entry and exit to the public and residential carpark and loading dock exit. Condition C47 goes on to provide for the involvement of Roads and Maritime Services (RMS) to the proposed median island works and the possibility that if an amended traffic signal design plan is required, that that also be undertaken in consultation with the RMS. Mr Rodwell opposed condition C47, however we are satisfied that it should be imposed.

103 The amended access arrangements on Albert Avenue and Thomas Street were regarded as acceptable with respect to pedestrian and traffic safety by the traffic experts, and further, the provision of a median in Albert Avenue to prevent a right turn movement into the site from Albert Avenue was also supported by Ms de Carvalho in her evidence. We accept the expert evidence and agree that condition C47 should be imposed in the form proposed.

104 The third major issue relating to the objector evidence concerns, as previously mentioned, the question of the podium height and design on the southern side of the site. The objector evidence has raised three main issues concerning the podium height and design. First, whether or not there ought to be above ground carparking provided; secondly, an increase in the wall height, and consequent impacts on streetscape and other matters that have previously been addressed; and thirdly, the issue of the separation between building 2 and the adjoining Iglu development at 73 Albert Avenue. In effect, the design of revised Modification 6 has a zero setback for that part of the boundary with a blank wall, and a 6 metre setback from the boundary for the Iglu development. Iglu's submissions on the merits of this proposal are to the effect that the increased height of the podium to building 1 and the introduction of a podium to building 2 with the zero setback has both broader impacts on the streetscape and more particularly will block the outlook of an additional three levels of Iglu's accommodation in addition to the three levels previously affected by Modification 3, affecting an additional 33 rooms in the student accommodation.

105 The broader impacts on streetscape have been addressed previously in these reasons by noting the additional activation now proposed in revised Modification 6, and the consideration of the streetscape impacts with the assistance of the expert planning evidence. Concerning the presentation to the Iglu development at 73 Albert Avenue, as previously noted, the Iglu development was designed and approved before Modification 3 for the subject development.

106 We do however acknowledge that there is an impact in terms of outlook with the proposed presentation of a blank wall on the eastern wall of that part of the podium. This was a matter raised by the Court at the commencement of the hearing with the parties, and was also raised as a significant issue in Iglu's written submission dated 6 December 2013.

107 During the course of the hearing, the architects of both the Meriton and the Iglu developments discussed possible solutions, and there were three options identified. The first option would be to provide a 1.2 metre setback of the wall on the top two levels of the eastern podium wall providing a horizontal planter. The concerns expressed about option 1 were that maintenance would be a difficulty and further that the provision of the 1.2 metre set back would take space away from internal storage intended for that area.

108 Option 2 was to provide vertical mesh screens on which planting could be attempted. The concerns raised about that option included the lack of sunlight on the small setback area, and difficulty in obtaining adequate vegetation growth.

109 Option 3 was to provide wall panels in different colours in a random pattern with slightly varying setbacks, and a further extension of the proposed planting along the top of the podium extending beyond that presently proposed with the childcare centre. The Minister's preference was for option 2. Iglu's preference was for option 1 however in responding to the proposals, Iglu agreed that option 3 would present a better treatment to the present blank wall.

110 On balance, and having considered the ongoing issues with establishing and maintaining vegetation and maintenance of that wall, we accept that proposed option 3 provides a degree of articulation and improves the presentation of that eastern podium wall adjoining the Iglu development. In the context where the revised set back which is part of the modification the subject of this appeal cannot be said to impact on the design intent of the Iglu development, we accept that the appropriate response to the issue of the presentation of the eastern podium wall is that reflected in option 3 as provided to the Court, and which has now been incorporated into the Project Approval through proposed condition B24.

111 The other issues raised in the objections concerning height, overshadowing, consistency with the LEP have previously been addressed by the Senior Commissioner and further in the agreed evidence of the traffic experts.

112 Overall, we are satisfied that the matters raised by the objectors have been appropriately addressed and reflected in the proposed conditions which we are satisfied are appropriate to be imposed subject to the amendments that have been specifically noted.

113 SENIOR COMMISSIONER: For abundant caution, I indicate that I adopt and concur in that which has been said by Pearson C. Subject to either the applicant or the Minister making any submissions concerning the funding for possible disabled access to 12 Thomas Street using the disabled lift at 2 to 4 Thomas Street (as provided for in this decision) and subject to receipt of a set of revised conditions reflecting this decision, the orders of the Court by consent will be:

(1) The appeal is upheld.

(2) Approval will be granted under s 75W of the Environmental Planning and Assessment Act 1979 to modify the project approval as described in sch 1 on the conditions referred to in sch 2 of the instrument in annexure A.

(3) The exhibits, other than exhibits A, G, 1, 10 and 12 are returned.

114 To give effect to this conclusion, assuming that neither party wishes to be heard further on the statement of commitments, we give the following directions:

(1) The respondent is to file and serve further revised conditions in hard copy and electronically to the Court's email address for my attention as a .doc document by 4.30pm on 18 December 2012.

(2) The matter is set down for mention before me at 4.15 on Tuesday, 24 December.

(3) If direction 1 is complied with then the mention will be vacated and we will make orders in chambers to give effect to our decision.

(4) Liberty on one day's notice after 9 o'clock after 18 December.

(5) If there are submissions concerning the monetary amounts proposed for the statement of commitments concerning access, we will consider this matter on the papers and issue a short supplementary decision. Such decision will set a further short timetable for conditions to be available to finalise the matter expeditiously to facilitate this outcome. Direction 2 for the mention will remain and modified directions 1 and 3 will be given if it is necessary to do so. The matter is formally adjourned until 4.15 on Christmas Eve.

Tim Moore

Senior Commissioner

 

Linda Pearson

Commissioner of the Court

Decision last updated: 20 January 2014