Alison Road Pty Ltd ATF Alison Road Trust v Randwick City Council

[2020] NSWLEC 1327

Land and Environment Court

New South Wales

Medium Neutral Citation:

Alison Road Pty Ltd ATF Alison Road Trust v Randwick City Council [2020] NSWLEC 1327

Hearing dates:

Conciliation conference on 17 July 2020

Date of orders:

28 July 2020

Decision date:

28 July 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to rely on the amended plans and documents set out in Annexure A.

(2) The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $7,000.00 within 21 days of the Court’s orders.

(3)   The appeal is upheld.

(4)   Development Application No. DA/265/2018 for the demolition of an existing dwelling and construction of a part 3, part 4 storey boarding house containing 16    boarding rooms (8 single and 8 double, and including 1 manager’s room), communal living room and outdoor terrace, waste and laundry facilities, 4 bicycle parking spaces, and at-grade parking for 4 cars (including 1 accessible space and 1 car share space) and 3 motorcycles on the land at 117 Alison Road, Randwick is approved subject to the conditions of consent annexed hereto and marked A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Randwick Local Environmental Plan 2012

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Alison Road Pty Ltd ATF Alison Road Trust (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/232226

Publication restriction:

No

Judgment

1. COMMISSIONER: Alison Road Pty Ltd ATF Alison Road Trust (the Applicant) has appealed the refusal by Randwick City Council (the Respondent) of its development application No. DA/265/2018 for demolition of existing structures and construction of a part 3, part 4 storey boarding house containing 16 boarding rooms and at grade car parking (the Proposed Development) at 117 Alison Road, Randwick (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 17 July 2020, and I had presided over that conciliation conference.

5. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

6. 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.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. the development application was made with the consent in writing of the Directors of Alison Road Pty Ltd ATF Alison Road Trust, being Mr Richard Volpe and Mr Kenneth Phillips, the owner of the land known as 117 Alison Road, Randwick and legally described as Lot 1 DP 632167, in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000;

2. the land to which the development application relates is situated within Zone R3 Medium Density Residential pursuant to the provisions of Randwick Local Environmental Plan 2012 (RLEP 2012). Development for the purposes of a boarding house is permissible with consent in accordance with the Land Use Table relating to Zone R3 Medium Density Residential in RLEP 2012;

3. pursuant to the height of buildings map referred to in cl 4.3(2) of RLEP 2012, the maximum permissible height of buildings on the site is 9.5 metres. The proposed development has a total maximum height of 10.51 metres;

4. The Applicant has provided an updated written request pursuant to cl 4.6(3) of RLEP 2012 seeking to justify the contravention of the height of buildings development standard in cl 4.3 of RLEP 2012;

5. The Parties have advised that the Court standing in the shoes of the consent authority for the purposes of hearing and determining this appeal would be satisfied as to the following matters about which it is required to be satisfied pursuant to cl 4.6(4) of RLEP 2012:

1. that the Applicant’s written request has adequately addressed the following matters required to be demonstrated:

1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.3 of RLEP 2012.

2. that the proposed development will be in the public interest because it is consistent with the objectives of cl 4.3 of RLEP 2012 and the objectives for development in Zone R3 Medium Density Residential.

6. the proposed development does not contravene any other development standard in RLEP 2012 nor any other applicable environmental planning instrument;

7. pursuant to the floor space ratio map referred to in cl 4.4(2) of RLEP 2012, the maximum permissible floor space ratio on the site is 0.75:1. However, cl 29(1)(c)(i) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) provides that consent cannot be refused to a development to which Division 3 applies if the floor space ratio is no more than 0.5:1 higher than the existing maximum permissible floor space ratio. The proposed development (as amended) has a floor space ratio of 1.02:1, which does not exceed the maximum in cl 4.4(2) of RLEP 2012 with the bonus in cl 29(1)(c)(i) of SEPP ARH;

8. the proposed development is located within the vicinity of a number of local heritage items, heritage conservation areas and state heritage items as identified in pars 9, 12, 13 and 14 in the “Facts” of the Respondent’s Statement of Facts and Contentions filed on 23 October 2019. Consideration has been given as to the effect of the proposed development on the heritage significance of the various items and it is considered that there will be no relevant impact;

9. the Parties have advised that the Court, standing in the shoes of the consent authority for the purposes of hearing and determining this appeal, would be satisfied as to those matters it is required to be satisfied in cl 6.4(3) of RLEP 2012 relating to stormwater management;

10. consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 —Remediation of Land. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated;

11. consideration has been given as to whether the design of the proposed development is compatible with the character of the local area as required by cl 30A of SEPP ARH; and

12. BASIX Certificate No. 1091379M has been provided by the Applicant to accompany the development application (as amended) to satisfy the requirement in Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

8. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

9. The Respondent also advised that it was satisfied that the matters raised by objectors in response to its notification of the Applicants’ Proposed Development, had been satisfactorily resolved by the Applicants’ amended plans.

10. I am further satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

12. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans and documents set out in Annexure A.

2. The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $7,000.00 within 21 days of the Court’s orders.

3. The appeal is upheld.

4. Development Application No. DA/265/2018 for the demolition of an existing dwelling and construction of a part 3, part 4 storey boarding house containing 16 boarding rooms (8 single and 8 double, and including 1 manager’s room), communal living room and outdoor terrace, waste and laundry facilities, 4 bicycle parking spaces, and at-grade parking for 4 cars (including 1 accessible space and 1 car share space) and 3 motorcycles on the land at 117 Alison Road, Randwick is approved subject to the conditions of consent annexed hereto and marked A.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (473420, pdf)

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Decision last updated: 28 July 2020