Cadele Investments Pty Ltd v Randwick City Council

[2021] NSWLEC 1616

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Cadele Investments Pty Ltd v Randwick City Council [2021] NSWLEC 1616

Hearing dates:

11 and 12 May 2021, 14 September 2021

Date of orders:

18 October 2021

Decision date:

18 October 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders that:

(1) The Amended cl 4.6 written request is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to DA/222/2020 for demolition of existing structures and construction of a part 3 and part 4 storey boarding house containing 26 boarding rooms and 1 manager’s room, 2 x communal living rooms, 1 x communal outdoor area, subterranean car parking, tree removal, landscaping and associated works at 8 Clyde Street Randwick, subject to the conditions in Annexure A.

(4) The exhibits are returned except for Exhibits A, B, D, G, J, 4 and 5.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – affordable rental housing – applicability of DCP controls

Cases Cited:

Cadele Investments Pty Ltd v Randwick City Council [2021] NSWLEC 1484

Texts Cited:

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Cadele Investments Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
S Philips (Respondent)

Solicitors:
Gilbert Mane (Applicant)
Randwick City Council (Respondent)

File Number(s):

2020/208862

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: On 24 August 2021 I handed down my reasons for judgment in the Class 1 appeal (Cadele Investments Pty Ltd v Randwick City Council [2021] NSWLEC 1484) (Cadele) to uphold the appeal subject to conditions. I directed, amongst other directions:

“The respondent, Randwick City Council, as the relevant consent authority, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this order and notify the Applicant immediately after it has been lodged.

The Applicant is to file a copy of the amended development application within 7 days after the respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal.

The respondent is to update its draft Conditions of Consent as filed with the Court on 18 May 2021 amended to reflect the findings in this judgment and to file a copy of the amended draft conditions within 7 days after it has notified the Applicant that the DA amendment has been lodged on the NSW planning portal.”

2. Those directions have now been complied with. The final draft conditions of consent were filed by the Council on 6 September 2021. In reviewing the final draft conditions I identified a minor miscalculation in the judgment that flows though to one of the conditions. I therefore reopened the matter on 14 September 2021 to advise the parties of this error and the solution I proposed, and to take any oral submissions on that particular matter should the parties so choose.

3. The miscalculation relates to the total number of single rooms and total number of boarders on the site arising from my decision in Cadele. At [120] of Cadele I referred to the 17 rooms, by their individual room number, that I found to have an area of more than 12m² and less than 16m² and were therefore reclassified from double rooms to single rooms. At [125] I incorrectly found the development provided, in addition to the Manager’s room, a total of 8 double rooms and 17 single rooms, resulting in a reduction in the total number of boarders from 55 to 33.

4. The development, however, includes a further single room (Room 4.5) that remains a single room. The correct number of rooms is therefore 8 double rooms and 18 (not 17) single rooms and the correct number of boarders permitted is 34 (not 33).

5. The additional boarder results in a marginal increase (of 1.2m²) in the area of communal living space that the Randwick Comprehensive Development Control Plan 2013 (DCP) suggests is necessary for the needs of the development. This minor increase is inconsequential to my decision and does not alter my finding at [155] of Cadele that the communal living space is acceptable.

6. In identifying and correcting this minor error I need to amend Conditions 2 k of the final draft conditions to reflect the amended number of single rooms and number of lodgers. At the hearing on 14 September the parties were given the opportunity of responding to the miscalculation identified and my proposal to amend condition 2 k accordingly. The parties raised no objection to this amendment and agreed, for clarity, that Condition 3 also be amended, to specify in the updated Plan of Management the single rooms by their room number.

7. I am satisfied that the conditions that form Annexure A to the development consent, including the amended Conditions 2 k and 3, accord with my judgment and take into account the amended number of single rooms and number of boarders. I therefore make the orders set out in the following paragraph.

8. The Court orders that:

1. The Amended cl 4.6 written request is upheld.

2. The appeal is upheld.

3. Development consent is granted to DA/222/2020 for demolition of existing structures and construction of a part 3 and part 4 storey boarding house containing 26 boarding rooms and 1 manager’s room, 2 x communal living rooms, 1 x communal outdoor area, subterranean car parking, tree removal, landscaping and associated works at 8 Clyde Street Randwick, subject to the conditions in Annexure A.

4. The exhibits are returned except for Exhibits A, B, D, G, J, 4 and 5.

……………………..

J Bindon

Acting Commissioner of the Court

Annexure A (499328, pdf)

**********

Amendments

21 December 2021 - Pursuant to UCPR r 36.17 and with the consent of all parties, amend (as underlined) Conditions 2 c and 2 f of Annexure A to read as follows:

c. The windows to the western corridors on all levels shall be glazed in obscure translucent glass and fixed. That is, there are to be no openable windows to the corridors. This is to protect the visual and acoustic privacy of the adjacent dwellings.

f. External screens covering the full height of the window openings to the western corridors on all levels shall be constructed in an opaque material with either:

• Fixed lattice/slats with individual openings not more than 30mm wide;

• Fixed vertical louvres with the individual blades angled and spaced appropriately to control light spill from the access corridors into the private open space or windows of the adjacent dwellings