Bana Pty Ltd v Randwick City Council

[2019] NSWLEC 1209

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bana Pty Ltd v Randwick City Council [2019] NSWLEC 1209
Hearing dates:	Conciliation conference on 16 April 2019; 23 April 2019; 2 May 2019; 9 May 2019
Date of orders:	14 May 2019
Decision date:	14 May 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1)   Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $5,500 within 28 days of these orders. (3) The Applicant’s written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (“RLEP”) seeking to justify the breach of the maximum floor space ratio development standard pursuant to clause 4.4 of RLEP dated 29 April 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of RLEP. Consequently, the Applicant’s written request is well founded and is upheld. (4) The Applicant’s written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (“RLEP”) seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of RLEP dated 29 April 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of RLEP. Consequently, the Applicant’s written request is well founded and is upheld. (5) The Applicant’s written Character of Local Area statement under clause 16A of State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP (ARH)”) in relation to whether the proposed development is compatible with the character of the local area has been considered and I have formed the necessary opinion of satisfaction under clause 16A of SEPP (ARH). (6)   The appeal in respect of the property known as 190-192 Carrington Road, Randwick, is upheld. (7)   Development Application DA/421/2018 for the demolition of existing structures and construction of a residential flat building containing 12 dwellings including five affordable rental housing units with basement parking for 17 vehicles, landscaping, strata subdivision and associated works at 190-192 Carrington Road, Randwick, is approved subject to the conditions at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Bana Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant)   Solicitors: Boskovitz Lawyers (Applicant) K Webber, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/262804
Publication restriction:	No

Judgment

1. COMMISSIONER: Bana Pty Ltd (the Applicant) has appealed the deemed refusal by Randwick City Council (the Respondent) of its development application (DA/421/2018), for the demolition of existing structures and construction of a four storey residential flat building, including affordable rental housing, with basement car parking, strata subdivision and associated works (the proposed development) at 190-192 Carrington 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 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 April 2019, 23 April 2019, 2 May 2019 and 9 May 2019, and I presided over the 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. The Parties’ decision involves the Court exercising the function under s 4.16 of the EP&A to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the following jurisdictional prerequisites of relevance in these proceedings, together with their views on how these had been satisfied, as follows:

1. in relation to the provisions of Randwick Local Environmental Plan 2012 (RLEP 2012):

1. the development works are for the purpose of a residential flat building, which is a permissible use in the R3 Medium Density Residential zone;

2. the development meets the objectives of the R3 zone at cl 2.3 of RLEP 2012;

3. the proposed development includes a breach of the maximum floor space ratio (FSR) development standard pursuant to cl 4.4 of RLEP. The Applicant had submitted a written request seeking this FSR development standard to be varied, and the Parties agreed that this request had demonstrated that:

1. the development meets the objectives of the FSR standard at cl 4.4 of RLEP 2012, notwithstanding the contravention of the development standard;

2. there are sufficient environmental planning grounds to justify contravening the FSR development standard; and

3. as noted above at (b), the proposed development meets the objectives of the R3 zone within which zone the development is proposed to be carried out;

4. the proposed development includes a breach of the maximum height of buildings development standard pursuant to cl 4.3 of RLEP. The Applicant had submitted a written request that this height development standard be varied, and the Parties agreed that this request had demonstrated that:

1. the proposed development meets the objectives of the height of buildings standard at cl 4.3 of RLEP 2012 notwithstanding the contravention of the development standard;

2. there are sufficient environmental planning grounds to justify contravening the height of buildings development standard; and

3. as noted above at (b), the proposed development meets the objectives of the R3 zone within which zone the development is proposed to be carried out;

5. because the proposed development is consistent with the objectives of the height of buildings and the FSR development standards, and with the objectives the zone in which the development is proposed to be carried out, it is in the public interest;

2. the development is required to comply with the provisions of State Environmental Planning Policy (Affordable Rental Housing) (SEPP (ARH)), and in particular cl 16A, which requires that a consent authority must not consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The parties confirmed, and I agree, that the proposed development is compatible with the character of the local area.

3. the development is required to comply with the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and in particular cl 7(1) requiring consideration of any contamination and associated required remediation. The Parties confirmed, and I agree, that as the Subject Site has been used for residential purposes, it not require any remediation.

4. the development is required to comply with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The Applicant has provided updated BASIX Certificate No. 940161M_04 dated 29 April 2019 in relation to its amended plans.

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. 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, for reasons provided at [7] and [8].

10. 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.

11. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $5,500 within 28 days of these orders.

3. The Applicant’s written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (“RLEP”) seeking to justify the breach of the maximum floor space ratio development standard pursuant to clause 4.4 of RLEP dated 29 April 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of RLEP. Consequently, the Applicant’s written request is well founded and is upheld.

4. The Applicant’s written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (“RLEP”) seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of RLEP dated 29 April 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of RLEP. Consequently, the Applicant’s written request is well founded and is upheld.

5. The Applicant’s written Character of Local Area statement under clause 16A of State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP (ARH)”) in relation to whether the proposed development is compatible with the character of the local area has been considered and I have formed the necessary opinion of satisfaction under clause 16A of SEPP (ARH).

6. The appeal in respect of the property known as 190-192 Carrington Road, Randwick, is upheld.

7. Development Application DA/421/2018 for the demolition of existing structures and construction of a residential flat building containing 12 dwellings including five affordable rental housing units with basement parking for 17 vehicles, landscaping, strata subdivision and associated works at 190-192 Carrington Road, Randwick, is approved subject to the conditions at Annexure “A”.

………………………

M Chilcott

Commissioner of the Court

Annexure A (204 KB, pdf)

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Decision last updated: 14 May 2019