3141 APK Pty Ltd v Randwick City Council

[2022] NSWLEC 1156

Land and Environment Court

New South Wales

Medium Neutral Citation:

3141 APK Pty Ltd v Randwick City Council [2022] NSWLEC 1156

Hearing dates:

Conciliation conference on 17 March 2022

Date of orders:

29 March 2022

Decision date:

29 March 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The Applicant’s written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, to vary the alternative height of buildings development standard contained in clause 6.17(4) of that plan is upheld.
(2) The appeal is upheld.
(3) Development Application No. DA/672/2019 for the demolition of existing structures and construction of shop-top Housing at 31-41 Anzac Parade, Kensington consisting of nine (9) storeys 57 apartments, two (2) retail premises, two (2) basement levels is determined by grant of consent, subject to the conditions in Annexure B.
(4) The Applicant is to pay the Respondent's costs thrown away in the agreed amount of $20,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 to be paid within 21 days of final orders being made by the Court in these proceedings.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 29, 74
Environmental Planning and Assessment Regulation 2021, cl 37

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.3, 2.7,4.3, 4.4, 4.6, 5.21, 6.2, 6.4, 6.10, 6.11, 6.17, 6.20

Roads Act 1993, s 138

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 65—Design
Quality of Residential Apartment Development, cl 30
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.97, 2.98, 2.118, 2.119
Water Management Act 2000, s 91

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Apartment Design Guide, Department of Planning and Environment July 2015
Randwick City Council Development Control Plan ‘Kensington and Kingsford Town Centres’, 20 November 2020.
Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

3141 APK Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Landro (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Colin Biggers & Paisley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/36027

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Randwick City Council's deemed refusal of development application DA672/2019 (DA). The DA proposes demolition of existing structures, removal of two (2) trees, consolidation of lots, and construction of a Pt 9 and Pt 10 storey shop top housing development, comprising 57 apartments, two retail premises and associated development on the land known as 31 -41 Anzac Parade, Kensington.

2. The site comprises Lots C and D in DP 442199, Lots A and B in DP 106671 and Lots 1 and 2 in DP 435561 and, after certain amendments, also includes the land within the road reserve adjoining Lot D, DP 442199 to Lot 2, DP 435561 (see [56]).

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 17 March 2022. After the conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined matters of relevance in these proceedings in a jurisdictional statement to the Court received by email on 22 March 2022. The note explained how jurisdictional matters have been or could be satisfied. Below I provide notes and findings in regard to jurisdiction, having considered the parties’ jurisdictional statement.

Randwick Local Environmental Plan 2012

7. The site is zoned B2 Local Centre under Randwick Local Environmental Plan 2012 (RLEP). ‘Shop top housing’ is a use that is permissible with consent in this zone. Demolition is also permissible with consent under cl 2.7. Mindful of cl 2.3(2), I have had regard to the B2 zone objectives.

8. The site is subject to a 25m height limit pursuant to cl 4.3. I accept the advice of the parties that a consent authority has the power, in accordance with cl 6.17(4), to grant consent to a development that results in additional building height if the development includes relevant community infrastructure on the site. In this instance the DA is accompanied by a Letter of Offer dated 22 February 2022 (Letter of Offer) to enter into a Voluntary Planning Agreement (VPA) that will facilitate the provision of community infrastructure on the site (Annexure C to this judgment). The proposed community infrastructure would compromise of two components:

• Community Infrastructure Works provided as works in kind, comprising landscape upgrades along the Site boundary including Water Sensitive Urban Design; and

• Monetary contributions based on Council's Community Infrastructure Contribution rate of $475 per sqm (offset against the value of the Community Infrastructure Works).

9. I concur with the agreed position of the parties in accordance with the jurisdictional statement that the requirements of clause 6.17(3) are met, as follows:

1. The objectives of the clause are satisfied for reasons I refer to below when considering the contravention of the building height standard (see [34]-[36])

2. I am satisfied that the proposed community infrastructure is reasonably necessary at Kensington and Kingsford town centres because I am advised by Council that the landscape upgrades and water sensitive design along the site frontage are specifically outlined in Council's 'Kensington and Kingsford Town Centres Community Infrastructure Contributions Plan' adopted on 10 December 2019 at item 6 of the appended Schedule.

3. Third, I have taken into account the nature of the community infrastructure and its value to the Kensington and Kingsford town centres community. The value of the contribution under the VPA is consistent with Council's prescribed rate of $475 per sqm of the additional floorspace enabled by cl 6.17. A monetary contribution has been offered, based on the value of the contribution, minus the cost of the community infrastructure works. The value of the contribution is consistent with Council's adopted 'Kensington and Kingsford Town Centres Community Infrastructure Contributions Plan'.

10. A deferred commencement condition has been agreed which requires the VPA to be finalised prior to the operation of the consent (Condition A1 in Annexure B of the judgment).

11. Under cl 6.17(4) the site is subject to an alternate building height limit of 31m. The development has a height which exceeds the 31m alternate height limit by 656mm, and the proposed development is accompanied by a written request (under cl 4.6) seeking approval despite the contravention of cl 6.17(4). I consider this height of buildings development standard contravention below.

12. The site is not subject to a maximum FSR control under cl 4.4. However, pursuant to the Alternative Floor Space Ratio Map referred to in cl 6.17(4)(b), the site is subject to a maximum permissible FSR of 4:1, with which the proposal complies. I accept the advice of the parties that the proposed development has a FSR of 3.91:1 which is permissible.

13. Clause 5.21 is concerned with flood planning and the parties advise that studies have indicated the 1% AEP floodwaters adjacent to the site are ‘high hazard’. I accept the advice of the parties in the jurisdictional statement that due to the timing of lodgement and certain other statute changes the provisions of cl 5.21 do not apply. Notwithstanding this, the parties agree that the proposed development has been designed to ensure compatibility with the flood function and behaviour on the land as required by cl 5.21. In particular, the parties note that the upper level of the ground floor retail has been provided at the 1% AEP flood (1 in 100), whilst the lower retail area has been provided at the level of the 5% AEP flood (1 in 20). The proposed conditions of consent also approve a flood risk management plan.

14. Clause 6.2 is concerned with earthworks. I have considered the matters listed at cl 6.2(3). The parties advise that these matters have been appropriately considered and it is the agreed position of the parties that the proposal warrants conditional approval, mindful of the Geotechnical Desktop Study prepared by Douglas Partners dated 5 December 2019 (TAB 15 of the Class 1 Application filed 8 February 2021) and the erosion and sediment control plan and details prepared by Australian Consulting Engineers dated July 2017 (Drawing No. D10 of TAB 24 of the Class 1 Application), and as reflected in the conditions of consent.

15. Clause 6.4 is concerned with stormwater management. In accordance with the advice of the parties I am satisfied that the requirements of cl 6.4(3) are satisfied with the application plans and proposed Conditions 39 and 40.

16. Clause 6.10 is concerned with essential services. I accept the advice of the parties that adequate arrangements have been made for the listed services.

17. Clause 6.11 provides that consent should not be granted unless the consent authority is satisfied that the proposal exhibits design excellence. The parties have taken me to relevant plans and particulars of the proposal and explained to me how the proposal exhibits design excellence, in particular in regard to its positive contribution to the public domain and the visual presentation of the immediate surrounds. I accept this advice and have also considered the design verification statement prepared by PBD Architects (Issue C) in coming to the conclusion that I am satisfied that the proposed development exhibits design excellence.

18. The proposal addresses the requirements of cl 6.20 by incorporating retail tenancies at the ground floor in order to provide an active street frontage.

State Environmental Planning Policy (Transport and Infrastructure) 2021

19. In regard to ss 2.97 and 2.98, the proposed development is adjacent to the Sydney light rail corridor on Anzac Parade. Transport for NSW have issued concurrence subject to conditions which have been included in the proposed conditions of consent at Condition 10 and Condition 11.

20. In regard to s 2.118, as the proposed development has a frontage to Anzac Parade (which is a classified road) and access is to be provided via Anzac Parade, the consent authority is required to be satisfied that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development and that the development is of a type that is not sensitive to traffic noise or vehicle emissions or that such effects are appropriately ameliorated.

1. I note that the proposed development will utilise the existing site access onto Anzac Parade. There are no alternative site access arrangements available to the development.

2. The proposed development allows all vehicles to enter and exit the development in a forward motion. In accordance with the advice of the parties, I accept the findings of the Traffic Impact Assessment report prepared by Varga Traffic Planning (TAB 13 of the Class 1 Application) that the volume, frequency and vehicle access and movement, as proposed, would not compromise the safety, efficiency, and operation of Anzac Parade.

3. Having regard to the Air Quality Assessment prepared by Vipac Engineers dated 25 November 2021 (Conciliation Conference Bundle Annexure A, Tab 60), I am also satisfied that the safety, efficiency and ongoing operation of Anzac Parade would not be adversely affected by the emission of smoke or dust from the development.

4. I am further satisfied that the development is appropriately located and designed, and includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road based on the findings of the Acoustic Report prepared by Acoustic Logic dated 17 November 2021 (Conciliation Conference Bundle, Annexure A, Tab 55).

21. Section 2.119 is concerned with the effects of road noise on the proposed development. As Anzac Parade is identified as carrying in excess of 40,000 annual average daily traffic volume, the consent authority is required to take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette. In addition, pursuant to s 2.119(3) the consent authority must be satisfied that appropriate measures to ensure the LAeq levels set out in (a) and (b) are not to be exceeded. I am satisfied in regard to these matters because, as indicated in the jurisdictional statement:

1. The Acoustic Report prepared by Acoustic Logic dated 17 November 2021 (Conciliation Conference Bundle, Annexure A, Tab 55) takes into consideration the ‘NSW Department of Planning’s ‘Development near Rail Corridors and Busy Roads (Interim Guideline)’.

2. The above Acoustic Report concludes that "provided the recommendations set out in s 4.4 of this report are employed, internal noise levels are able to satisfy requirements outlined in:

1. Randwick City Council’s Development Control Plan ‘Kensington and Kingsford Town Centres’, published 20 November 2020.

2. Australian and New Zealand Standard AS/NZS 2107:2016 ‘Recommended design sound levels and reverberation times for building interiors’."

3. The noise limits in the Randwick City Council Development Control Plan ‘Kensington and Kingsford Town Centres’, published 20 November 2020, mirror the noise limits in s 2.119(3) of SEPP Transport and Infrastructure.

4. The conditions of consent at Annexure B to this judgement requires the proposed development to adopt the recommendations of the submitted acoustic report:

1. Condition 1 requires the development to be implemented substantially in accordance with the plans and supporting documentation listed, and the Acoustic Report prepared by Acoustic Logic dated 17 November 2021 is a listed document.

22. Under s 2.121, the proposed development is traffic-generating development, and referral to Transport for NSW (TfNSW) is therefore required. The development was referred to TfNSW and concurrence was provided on 20 May 2020. Condition 10 incorporates the TfNSW conditions.

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

23. In regard to State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) and cl 29 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the Applicant has provided the required statement by the proposal’s qualified designer addressing how the design quality related principles and objectives of Pts 3 and 4 of the Apartment Design Guide (ADG) have been achieved (Conciliation Conference Bundle Tab 54). I have considered the design quality of the development when evaluated in accordance with the design quality principles, and the ADG. I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the relevant ADG objectives (as required by cl 30(2)).

State Environmental Planning Policy (Resilience and Hazards) 2021

24. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) includes provisions in regard to contamination and remediation. I accept the advice of the parties that a preliminary site investigation prepared by Douglas Partners (dated December 2020) found that the potential for contamination is low, and the site should be suitable for the proposed development. Condition 23 would require the submission of a Detailed Site Investigation Report after demolition. The requirements of s 4.6(1) have been met.

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

25. BASIX certificate 841191M_04 has been issued for the amended plans (Annexure A, Tab 62).

Integrated development

26. The proposal is integrated development under s 4.46 of the EPA Act on two fronts.

• Under s 138 of the Roads Act 1993 consent from TfNSW is required to remove an existing vehicular crossing and construct a new vehicular crossing on Anzac Parade, and carry out of excavation works. TfNSW have issued concurrence subject to conditions which must be complied with under Condition 10 in the proposed Conditions of Consent.

• Under s 91 of the Water Management Act 2000 No 92 the proposed development requires an aquifer interference approval for excavation works. Water NSW issued General Terms of Approval on 14 May 2021. Condition 9 in the Conditions of Consent states that General Terms of Approval shall be complied with.

Notification and consideration of submissions

27. Council advises that the proposal was notified in accordance with requirements and that objecting submissions have been received. The main concerns were in regard to privacy impacts and concerns in regard to construction stage works and potential damage to neighbouring property. Council demonstrated to me that privacy concerns had been addressed through use of privacy screening and advised that conditions of consent provide for dilapidation surveys to be prepared in regard to potentially affected properties. Council also referred me to the prescribed condition (EPA Regulation cl 74) requiring the persons benefitting from the consent to protect and support the building, structure or work on adjoining land from possible damage from relevant excavation.

Building height contravention

28. The proposal involves a contravention of the height of building standard under RLEP. The applicant has opened the door to the potential approval of the development notwithstanding this contravention by submitting a written request under cl 4.6 of RLEP seeking to justify the contravention of the development standard.

29. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [14]). The first opinion is in regard to the written request from the Applicant and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3) of RLEP. These two matters are:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

30. The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

30. I note that the Council agrees that the cl 4.6 request (Conciliation Conference Bundle Annexure A, Tab 52) demonstrates that compliance with the alternative height building development standard prescribed for the site in clause 6.17(4) of RLEP is unreasonable and unnecessary. The Council also agrees that there are sufficient environmental planning grounds to justify the requested variation and that the approval of the variation is in the public interest because it is consistent with the development standard and zone objectives. Nevertheless, it is for the Court to make its own determination in regard to these matters.

Particulars of contravention

32. The written request provides the particulars of the proposal’s contravention of the alternative building height control under cl 6.17 of RLEP. The maximum building height under this control is 31m. The proposal would contravene this control by a maximum of 656mm for the purposes of a lift overrun and the screening proposed around rooftop services.

Whether compliance unreasonable or unnecessary

33. Mindful of cl 4.6(3)(a) of RLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ’s finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first “Wehbe way”, seeking to show how, otherwise, the development achieves the objectives of cl 6.17 of RLEP. The objectives of cl 6.17 are as follows:

(a)  to allow greater building heights and densities at Kensington and Kingsford town centres where community infrastructure is also provided,

(b)  to ensure that those greater building heights and densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities,

(c)  to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure.

34. The written request successfully demonstrates that the first objective of cl 6.17 is achieved through its reference to the Letter of Offer from the applicant which forms part of the application and has been referenced in proposed consent conditions. The Letter of Offer outlines proposed community infrastructure and related financial contributions. The written request adequately demonstrates that community in infrastructure is to be provided with this development.

35. The written request also successfully demonstrates that the second objective of cl 6.17 is achieved through its pointing out that of the relative scale (656mm above a nine storey building) and limited scope of the contravention (limited to certain generally setback roof elements which would not be apparent from the public domain or surrounding properties). It also indicates that the proposal complies with the maximum number of stories applying to the site under Randwick Development Control Plan 2013 (RDCP) which could be seen as a baseline when amenity impacts are under consideration. The written request demonstrates that the proposed height reflects the desired character of the locality and minimises adverse impacts on local amenity.

36. The written request also successfully demonstrates that the third objective of cl 6.17 is achieved through highlighting that the additional height would not affect the intensity of development, which can be seen to be otherwise commensurate with the capacity of existing and planned infrastructure.

37. In turn, and in accordance with the first Wehbe way, I find that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Sufficient environmental planning grounds

38. A number of environmental planning grounds are nominated in the written request argued to be sufficient to justify contravening the development standard. Sufficient for me is that the proposal provides for 3m floor to ceiling heights on Level 1 to accommodate the potential for non-residential development at this level in the future, coupled with the fact of the small scale of the contravention and the fact that it would be generally imperceptible from the public domain.

39. Together, the above findings mean the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of RLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the height of buildings contravention.

Public interest

40. I now turn to the test at cl 4.6(4)(a)(ii) of RLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the zone.

41. I agree with and rely on the written request’s demonstration that the proposed development is consistent with the objectives of the applicable building height standard.

42. The zone objectives are reproduced below:

•  To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

•  To encourage employment opportunities in accessible locations.

•  To maximise public transport patronage and encourage walking and cycling.

•  To enable residential development that is well-integrated with, and supports the primary business function of, the zone.

•  To facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community.

•  To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones.

•  To facilitate a safe public domain.

43. The ground floor of the proposed development is established to provide retail spaces aimed at activating the street. The proposed development would through the ground floor configuration, and as well proposed floor to ceiling height at Level 1, provide for an aspect of the range of nominated uses to serve the needs of people who live in, work in and visit the local area, consistent with the first zone objective.

44. The retail space would also provide for employment opportunities in this area with good accessibility, consistent with the second zone objective.

45. The proposed development would increase the residential population with good access to high frequency public transport and facilities and destinations encouraging of walking and cycling, consistent with the third zone objective.

46. The proposal directly provides for residential development integrated into the otherwise business zone, consistent with the fourth zone objective.

47. For the fifth zone objective, I am aided by the advice that Council sees the proposal as exhibiting design excellence. I agree that with its articulation, massing and materials, and through its hard and soft landscaping proposals for the nature strip area the proposal would contribute positively to the local sense of place and fully achieves the fifth zone objective.

48. I am satisfied that the proposal provides adequate protection of the amenity of nearby residences with the proposed building setback and privacy treatment. The sixth zone objective is achieved.

49. Proposed ground floor retailing would provide for street activation and passive surveillance, consistent with the seventh zone objective.

50. On the basis of the above, I find the development consistent with the B2 zone objectives.

51. Based on my conclusions above, the proposed development will be in the public interest because it is consistent with the objectives of the alternative building height standard under cl 6.17, and the objectives for development within the B2 zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of RLEP are met in regard to the height of buildings contravention.

Finding – building height contravention

52. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of the RLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.

53. The states of satisfaction required by cl 4.6 of RLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the building height standard.

Conclusion

54. Mindful of the above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

55. I note that I have had no other direct regard to the merits of the application in coming to this position.

56. The Court notes the advice of the parties that:

1. Development Application No. DA/672/2019 has been amended in accordance with the amended plans and supporting documentation identified at Annexure A, and that as a result of the above amendments, Development Application No. DA/672/2019 now includes the land within the road reserve adjoining Lot D, DP 442199 to Lot 2, DP 435561, and Council has provided its owner's consent in respect of this.

57. The Court orders that:

1. The Applicant’s written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, to vary the alternative height of buildings development standard contained in clause 6.17(4) of that plan is upheld.

2. The appeal is upheld.

3. Development Application No. DA/672/2019 for the demolition of existing structures and construction of shop-top Housing at 31-41 Anzac Parade, Kensington consisting of nine (9) storeys 57 apartments, two (2) retail premises, two (2) basement levels is determined by grant of consent, subject to the conditions in Annexure B.

4. The Applicant is to pay the Respondent's costs thrown away in the agreed amount of $20,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 to be paid within 21 days of final orders being made by the Court in these proceedings.

……………………………

P Walsh

Commissioner of the Court

Annexure A (119347, pdf)

Annexure B (592265, pdf)

Annexure C (393946, PDF)

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Decision last updated: 29 March 2022