2M4 Pty Ltd v Randwick City Council

[2022] NSWLEC 1307

Land and Environment Court

New South Wales

Medium Neutral Citation:

2M4 Pty Ltd v Randwick City Council [2022] NSWLEC 1307

Hearing dates:

Conciliation conference on 16 May 2022

Date of orders:

15 June 2022

Decision date:

15 June 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is to pay the Respondent’s costs thrown away in the amount of $7,400.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) Development Application DA/661/2020, as amended, for the alterations and additions to an existing residential flat building, including demolition of existing garage, outbuilding and some internal walls, upgrades to existing building, internal reconfiguration of units and addition of balconies and patios, construction of a new second floor comprising an additional five units in total, units 1, 2 and 4 to be allocated as affordable housing), construction of a single car garage (to be provided as a car share facility), and landscaping at 52 Mount Street, Coogee is determined by the granting of consent, subject to the conditions in Annexure A to these orders.

Catchwords:

DEVELOPMENT APPLICATION – infill seniors housing development – amended plans – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 7.32, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021, cl 29

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 4.3, 4.6

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 13, 17, 47, 50, 51, Pt 3

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28, Sch 1

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide

Category:

Principal judgment

Parties:

2M4 Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Solicitors:
Mills Oakley (Applicant)

File Number(s):

Randwick City Council (Respondent)

2021/245635

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of Development Application No DA/661/2020 by Randwick City Council. The development application seeks consent for alterations and additions to an existing residential flat building located on the site. The development is proposed at 52 Mount Street, Coogee (Lot A DP 82883).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 May 2022. I presided over the conciliation conference. Following the conciliation, amended plans and documentation was prepared and agreement was reached between the parties. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site.

2. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

3. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 of SEPP 65 requires a consent authority, or the Court on appeal, to take into consideration advice from the design review panel, and the design quality of the development when evaluated in accordance with the design quality principles, and the Apartment Design Guide (ADG). I have reviewed the amended development application against these provisions, and I am satisfied that adequate regard has been given to the design quality principles at Sch 1 of SEPP 65, and the objectives specified in the ADG.

4. Clause 29(2) of the Environmental Planning and Assessment Regulation 2021 requires an application for residential apartment development to be accompanied by a statement by a qualified designer. A complying design verification statement prepared by the architect Trevor Hall (6438) accompanies the application.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) came into force on 1 March 2022. SEPP Resilience and Hazards transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of SEPP Resilience and Hazards. The Statement of Environmental Effects includes a review of the site history which indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development.

6. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the development application. Pursuant to cl 10 of SEPP ARH, the proposed development is permissible with consent in the R3 Medium Density Residential zone. The development application is compliant with the floor space ratio standard at cl 13 of SEPP ARH.

7. In determining the development application, I have taken into consideration whether the design of the development is compatible with the character of the local area. I am satisfied that as amended the development will be compatible.

8. Consistent with the requirement of cl 17 of SEPP ARH, the annexed conditions include the requirement at condition 7 that Units 1, 2 and 4 are utilised for the purposes of affordable rental housing for a period of 10 years from the date of issue of an occupation certificate.

9. Part 3 of SEPP ARH provides for contributions to be payable for a reduction in the availability of affordable rental housing in the Sydney region. As the proposed development is infill affordable housing, the provisions of Pt 3 apply. The parties agree, and I accept, that the existing residential flat building on the subject site contains ‘low rental dwellings’ and constitutes a ‘low rental residential building’ as defined in cl 47 of SEPP ARH. Clause 51(2) of SEPP ARH authorises the imposition of a condition requiring the payment of a monetary amount for the purpose of affordable housing pursuant to s 7.32(2)(b) of the EPA Act. Such a contribution is agreed by the parties and included in the annexed conditions, satisfying the requirements of cl 51 of SEPP ARH.

10. In determining the development application, I have taken into account the Guidelines for the Retention of Existing Affordable Rental Housing and the matters listed at cl 50(2) of SEPP ARH.

11. Pursuant to Randwick Local Environmental Plan 2012 (LEP 2012) the site is zoned R3 Medium Density Residential. Residential flat buildings are a permissible use in the zone. In determining the development application, I have had regard to the objectives of the zone.

12. The development application is compliant with the applicable floor space ratio control under LEP 2012 and SEPP ARH.

13. The site is subject to a maximum height control of 9.5m: cl 4.3 of LEP 2012. The development application proposes a maximum height of 10.4m and relies on a written request pursuant to cl 4.6 of LEP 2012 to vary the maximum height development standard.

• After considering the Applicant’s written request, I am satisfied that compliance with the maximum height control is unreasonable or unnecessary in the circumstances of this development application on the basis that the objectives of the standard are achieved notwithstanding the variation. I adopt the reasoning of the written request in this regard. In particular, I am satisfied that the proposed development is of a size and scale which is compatible with the desired future character of the locality and will not impact adversely on the amenity of adjoining properties. Further, I am satisfied that the environmental planning grounds advanced in the written request, in particular the fact that the additional height arises from the provision of additional gross floor area arising from SEPP ARH and will result in an upgrade to the existing building, are sufficient to justify the variation sought.

• I am satisfied that the proposed development will be in the public interest as it is consistent with the objectives for development in the R3 Medium Density Residential zone.

• I am satisfied that the requirements of cl 4.6 of LEP 2012 to allow the variation to the development standard are met.

• Finally, cl 4.6(4)(b) of the LEP 2012 requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

14. The development application was notified to adjoining and proximate properties. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court notes that:

1. Randwick City Council, as the relevant consent authority, has agreed, under the then cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application DA/661/2020 per the documentation listed at (4).

2. The Court notes that the amended development application was lodged on the planning portal on 23 May 2022.

3. The Court notes that the amended development application was filed with the Court on 23 May 2022.

4. By consent, the Applicant is granted leave to rely upon amended plans and materials as follows:

Drawing number, plan name and revision	Prepared by	Date	Date received by Council
Architectural Plans
DA/07 Rev B Existing East Elevation	Trevor Hall Architects	15 December 2021	22 December 2021
DA/14 Rev B Streetscape Studies	Trevor Hall Architects	15 December 2021	22 December 2021
DA/15 Rev B Proposed Site Plan	Trevor Hall Architects	15 December 2021	22 December 2021
DA/16 Rev E Proposed Ground Floor Plan	Trevor Hall Architects	20 April 2022	29 April 2022
DA/17 Rev D Proposed First Floor Plan	Trevor Hall Architects	20 April 2022	29 April 2022
DA/18 Rev C Proposed Second Floor Plan	Trevor Hall Architects	15 December 2021	22 December 2021
DA/19 Rev B Proposed Roof Plan	Trevor Hall Architects	15 December 2021	22 December 2021
DA/20 Rev B Proposed East Elevations	Trevor Hall Architects	15 December 2021	22 December 2021
DA/21 Rev B Proposed North Elevation	Trevor Hall Architects	15 December 2021	22 December 2021
DA/22 Rev B Proposed West Elevations	Trevor Hall Architects	15 December 2021	22 December 2021
DA/23 Rev B Proposed South Elevation & Section CC	Trevor Hall Architects	15 December 2021	22 December 2021
DA/24 Rev C Proposed East West Sections	Trevor Hall Architects	15 December 2021	22 December 2021
DA/25 Rev B Proposed Sections	Trevor Hall Architects	15 December 2021	22 December 2021
DA/26 Rev E Proposed Area Calculations	Trevor Hall Architects	20 April 2022	29 April 2022
DA/27 Rev B Ventilation Diagrams	Trevor Hall Architects	14 December 2021	22 December 2021
DA/28 Rev A External Materials and Finishes	Trevor Hall Architects	24 November 2020	22 December 2021
Reports
Amended SEPP 65 Design Verification Statement prepared by Trevor Hall Architects dated December 2021
Amended BASIX Certificate no A396214_03 dated 17 December 2021
Amended BASIX Certificate no A396231_02 dated 17 December 2021
Amended BASIX Certificate no A396232_02 dated 17 December 2021
Amended BASIX Certificate no A396233_02 dated 17 December 2021
Amended BASIX Certificate no 1270025M dated 20 December 2021
Amended clause 4.6 request prepared by ABC Planning dated December 2021
Plan of Management prepared by PDC Consultants dated 20 January 2022

8. The Court orders that:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs thrown away in the amount of $7,400.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. Development Application DA/661/2020, as amended, for the alterations and additions to an existing residential flat building, including demolition of existing garage, outbuilding and some internal walls, upgrades to existing building, internal reconfiguration of units and addition of balconies and patios, construction of a new second floor comprising an additional five units in total, units 1, 2 and 4 to be allocated as affordable housing), construction of a single car garage (to be provided as a car share facility), and landscaping at 52 Mount Street, Coogee is determined by the granting of consent, subject to the conditions in Annexure A to these orders.

……………………

D M Dickson

Commissioner of the Court

Decision last updated: 16 June 2022