Architecture Design Studio (NSW) Pty Limited v Randwick City Council

[2019] NSWLEC 1314

Land and Environment Court

New South Wales

Medium Neutral Citation:	Architecture Design Studio (NSW) Pty Limited v Randwick City Council [2019] NSWLEC 1314
Hearing dates:	Conciliation conference on 21 and 29 May 2019
Date of orders:	04 July 2019
Decision date:	04 July 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION – boarding house - 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
Category:	Principal judgment
Parties:	Architecture Design Studio (NSW) Pty Limited (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: J Reid (Applicant)   Solicitors: Concordia Legal (Applicant) P Hudson, Marsdens Law Group (Respondent)
File Number(s):	2018/303584
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal concerning a development application for the demolition of all existing structures on site and the construction of a boarding house comprising 34 rooms over basement car parking at 3 Chester Avenue, Maroubra. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). 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 in [7] below, are made as a result of an agreement between the parties that was reached following a conciliation conference.

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 21 and 29 May 2019. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application seeks development consent for the demolition of existing structures, the construction of a 3 storey boarding house with 30 boarding rooms, 1 manager’s room and 1 communal room over basement parking for 13 cars, 6 motorcycles and 6 bicycles, and landscaping and associated works on the land.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 form this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

• The development application was made with the consent in writing of the executors of the estate of the owner of 3 Chester Avenue Maroubra (Lot 77, DP 36217), being the land to which the development application relates.

• The development is for the purpose of a “boarding house”, which is a permissible use in the R3 Medium Density Residential zone in which the site is located, pursuant to the provisions of the Randwick Local Environmental Plan 2012 (“RLEP 2012”).

• The development does not contravene any development standard in the RLEP 2012 or any other applicable environmental planning instrument.

• 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, and the following reports demonstrate that the subject site will be suitable for the purposes of the proposed development following remediation which will be carried out before the land is used for that purpose:

1. Preliminary Site Investigation prepared by Australian Geotechnical dated 2 May 2018;

2. Detailed Site Investigation prepared by Australian Geotechnical dated 15 May 2018; and

3. Remedial Action Plan prepared by Australian Geotechnical dated 21 May 2018.

• The development application (as amended) was accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000.

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 required 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 orders that:

1. The Applicant is granted leave to rely on the following amended plans:

Dwg No.	Title	Rev.	Drawn by	Dated
0000	Title Sheet	Rev A	Architecture Design Studio (NSW) Pty Ltd	24/05/19
1101	Basement Level	Rev A		27/05/19
1201	Ground Floor	Rev A		24/05/19
1301	First Floor	Rev A		24/05/19
1302	Second Floor	Rev A		24/05/19
1401	Roof	Rev A		24/05/19
1501	North & South Elevations	Rev A		24/05/19
1502	East & West Elevations	Rev A		24/05/19
1503	Streetscape Elevation	Rev A		24/05/19
1601	Sections 1	Rev A		24/05/19
1602	Ramp Section	Rev A		24/05/19
3101	Ground Floor GFA & Cross Ventilation	Rev A		24/05/19
3102	First Floor GFA & Cross Ventilation	Rev A		24/05/19
3103	Second Floor GFA & Cross Ventilation	Rev A		24/05/19
8101	Shadow June 21 – 8am	Rev A		24/05/19
8102	Shadow June 21 – 9am	Rev A		24/05/19
8103	Shadow June 21 – 10am	Rev A		24/05/19
8104	Shadow June 21 – 11am	Rev A		24/05/19
8105	Shadow June 21 – 12pm	Rev A		24/05/19
8106	Shadow June 21 – 1pm	Rev A		24/05/19
8107	Shadow June 21 – 2pm	Rev A		24/05/19
8108	Shadow June 21 – 3pm	Rev A		24/05/19
8109	Shadow June 21 – 4pm	Rev A		24/05/19
8300	3D Height Plan	Rev A		24/05/19

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $7,000 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development Application No. DA/409/2018 for the demolition of existing structures, the construction of a 3 storey boarding house with 30 boarding rooms, 1 manager’s room and 1 communal room over basement parking for 13 cars, 6 motorcycles and 6 bicycles, and landscaping and associated works on the land at 3 Chester Avenue, Maroubra is approved, subject to the conditions of consent at Annexure “A”.

………………………….

J Gray

Commissioner of the Court

Annexure A (183 KB, pdf)

Plans (7.52 MB, pdf)

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Decision last updated: 04 July 2019