[+] Canterbury-Bankstown Case Lays NSW Planning Woes Bare

Ask any planner or developer in New South Wales and they’ll likely have a laundry list of issues with the state’s planning system. A seemingly clear-cut Land and Environment Court case over a Canterbury-Bankstown highrise apartment development has put the spotlight on some of these issues, including 40-day assessment times and “substantially the same” modifications. “It started out as a reasonably straightforward job,” Realize Architecture’s Terry Savill, whose firm designed the project, says. But it turned out to be anything but that. The Canterbury-Bankstown case Realize Architecture’s court win last month against the City of Canterbury-Bankstown was the culmination of a complex case over a development of more than 400 riverside apartments for its client and landowner Metro Storage. Initially lodged in 2013, the development at 1-13 Close Street and 242-258 Canterbury Road was approved in 2014. “It’s close to the Canterbury-Bankstown centre, and most of the DCP [development control plans] controls were directed at revitalising the town centre by opening it up to the Cooks River,” Savill, who is director and principal of Realize, says. But after seeing the nearby riverfront revitalisation plans fall by the wayside, says Savill, a rethink was required. “We lodged another DA amendment (S4.55) to improve our riverside connection and in doing so we thought we’d rework the unit mix and upgrade the apartments.” ▲ A previous Section 46 modification for the proposal was approved by the Canterbury-Bankstown council in 2017. While this was happening, a merger created the amalgamated City of Canterbury-Bankstown Council. The former Canterbury City Council faced an Independent Commission Against Corruption (ICAC) investigation , which eventually found that some councillors and the then-director of city planning had engaged in “serious corrupt conduct”. “People at the council there were cautious and anxious because of the ICAC investigation,” Savill says. “We were asking for a larger floor space ratio [FSR] and additional floor area for some of the adjustments to open up the space. The council refused to give us that.” An adjusted scheme was submitted in December, 2021, but the council did not respond within the statutory 40 days, so it was decided that the Land and Environment Court of New South Wales (LEC) was the way forward. ▲ The Canterbury line of the Sydney Metro opened in 2016 with new environmental controls allowing for greater density. “The council tried to argue that each individual unit was different, and was therefore not ‘substantially the same’ [the test for whether a modification can be submitted, or whether a new DA would have to be drawn up]. “We ended up with 405 apartments, and this was approved by the courts.” This decision, however, was challenged by the Canterbury-Bankstown council, which appealed the decision on matters of law—the only way to challenge the court’s initial Class 1 decision. This appeal was ultimately thrown out by the judge in April. “We were happy with the outcome and think the ‘substantially the same’ test now has some grounding and has some more surety,” Savill says. Canterbury-Bankstown council was contacted but could not provide commentary in time for publication. Forty days and forty nights Raising the case for what is “substantially the same”, as well as the usefulness of 40-day development assessment times is opening a can of worms. Anthony Whealy, a partner at Mills Oakley, acts only for landowners, rather than councils, and led the Realize case. “There are over 30 years of cases telling you what is and isn’t substantially the same, so councils have come to approach it in a formulaic manner,” Whealy says. “What the Realize case tells us, in both decisions, is that we should stop overthinking the formulas that might be applied and go back to what the Act says—is it substantially the same or not? “I think the answer is that the decisions have made it easier for councils to find that a development is substantially the same, and not as restrictively controlled by decades of case law.” ▲ More complex development inevitably takes longer to assess than single residential homes, which average 90 days, the Department of Planning says. Councils and the state government have also been at odds over the issue of 40-day assessment times, with Tweed Shire Mayor Chris Cherry last year complaining that the rule allowed developers to “jump the queue” and go straight to court. “The court process can take a minimum of six, possibly 12 months, but 40 days won’t get you an approval,” Whealy says. In fact, average assessment times for multi-unit residential dwellings in 2022-23 were 182 days, according to the Department of Planning . “Not everyone goes to court after that; they might be happy to wait rather than run court proceedings, but with anything controversial or challenging, specific councils can be notoriously difficult and developers will factor in that they have to go to court.” As a result, some developers, such as Toohey Miller and Third.i, have made it part of their process to go to court and, in many cases, they win . LEC or bust There are, of course, pros and cons to taking the court route. “What we find with the LEC process is that the council is no longer sitting there in complete control of outcomes and process,” Whealy says. An avenue to pursue appeal is always welcome, he says. “Appeals to the LEC are an option to counter the issue of understaffed councils but the other major benefit of the LEC is rational decisions—we see a lot of positive and rational decisions in the LEC even after councils have said ‘No, over our dead body’ to an approval at an earlier point in time. “LEC appeals essentially force councils to the table and they are required to pay for and use the testimony of high-quality external professionals.” But the real benefit of the LEC process is the conciliation conference, Whealy says. “We run 150 appeals a year I’d say, and we settle 70 per cent of them through the conciliation process. That’s what developers want, to force it into conciliation and get a sensible outcome through the process. “Worst case, if conciliation does not resolve it, then you get an impartial decision from LEC.” ▲ “It’s about being in a different forum," says Whealy of conciliation conferences. However, this is a negative for the taxpayer, given that councils spend huge amounts on going to court. Figures are few and far between, but Sutherland Shire Council, for instance, was reported in local media as having spent $234,000 on legal fees for Land and Environment court cases in 2022. The battle between developers and councils is a necessary one but one that can and should be mediated, perhaps with a third way that lies between purely council-reliant approval processes and the courts. “What councils should want is good development, especially somewhere like Canterbury Town Centre [ home to a defective Toplace building ],” Realize’s Terry Savill says. “They should want something you can be proud of, that makes a positive statement and becomes a landmark, and that’s what we’re trying to do.” You are currently experiencing The Urban Developer Plus (TUD+), our premium membership for property professionals. Click here to learn more.

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Clare Burnett
Wed 01 May 24

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