Background
Mulpha operates the InterContinental Sydney at 117–119 Macquarie Street. Its hotel benefits from a right of carriageway through a basement-level tunnel in the neighbouring Sir Stamford Hotel building at 93–97 Macquarie Street, providing vehicle access used by guests and service vehicles.
The City of Sydney’s Central Sydney Planning Committee approved demolition of the Sir Stamford Hotel and a mixed-use redevelopment, as well as a modification to an earlier concept consent. The approved plans required retention of the carriageway, and a condition required certified temporary structural designs to ensure it remained physically accessible and safely operational during demolition and construction. Mulpha sought judicial review, alleging inadequate consideration of impacts on the right of carriageway, unlawful uncertainty in the condition, and an invalid height-standard variation.
The Court’s Holding
Robson J dismissed the proceedings. The Court held that the Council had considered the likely impacts on the right of carriageway as required by s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW). The assessment report, amended plans, engineering advice and Mulpha’s own submissions put the issue squarely before the Council. Whether the material was sufficiently detailed was principally an evaluative planning question, not a basis for merits review.
The condition requiring a later certified structural design was valid. It did not defer a fundamental decision about whether the carriageway had to be retained: the consent and approved plans already required its retention. The condition permissibly dealt with the engineering detail of how that result would be achieved, using clear requirements and approval criteria.
The Court also rejected Mulpha’s building-height challenge. “Ground level (existing)” in the Sydney Local Environmental Plan 2012 meant ground level, not the bottom of the existing five-level basement. The extrapolated ground-level methodology used in the clause 4.6 variation request was appropriate on this heavily developed site. Mulpha was ordered to pay the second respondent developer’s costs unless an alternative costs application was made within seven days.
Key Takeaways
- Judicial review examines whether a consent authority considered relevant impacts, not whether the Court would regard its assessment as sufficiently detailed.
- A consent condition may require later technical design where the approved development fixes the essential outcome and the condition supplies clear criteria.
- For this site, existing ground level for building-height purposes did not mean the lowest excavated basement level.
Why It Matters
The decision confirms the practical latitude available to planning authorities dealing with complex construction-stage issues. An authority may rely on professional engineering advice and require detailed certified designs before works begin, provided it has already resolved the essential planning outcome.
It also provides guidance on applying height controls to redevelopments with existing deep basements: the assessment should remain connected to ground level, built form and the planning purpose of the height standard rather than treating excavation depth as the starting point for building height.