Carrdev Pty Ltd v Randwick City Council

[2022] NSWLEC 1322

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carrdev Pty Ltd v Randwick City Council [2022] NSWLEC 1322

Hearing dates:

Conciliation conference on 23 February 2022, 16 March 2022 and 11 April 2022

Date of orders:

22 June 2022

Decision date:

22 June 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendment to the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,620.00.

(3) Development consent is granted to development application DA/339/2021 for the demolition of existing structures and construction of a 3-storey residential flat building with basement car parking, landscaping and associated works at 201-207 Carrington Road, Coogee, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 7.32 (2)(b), 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Ryde Local Environmental Plan 2012, cll 2.7, 4.1A, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4, 6.10
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 50(1)(a)
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Category:

Principal judgment

Parties:

Carrdev Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s):

2021/277633

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA/339/2021 (the DA) by Randwick City Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 2,268m² parcel of land which consists of four lots legally described as Lot B in DP 978166 (201 Carrington Road), Lot 1 in DP 962285 (203 Carrington Road), Lot 1 in DP 963606 (205 Carrington Road) and Lot 2 in DP 963606 (207 Carrington Road), Coogee (the Site). The DA as submitted to Council sought consent for the demolition of the existing dwellings and structures and the construction of a three (3) storey residential flat building comprising twenty (20) units of 4 x 1 bedroom units, 9 x 2 bedroom units and 7 x 3 bedroom units and associated carparking and landscaping.

3. The Development Application was notified by the Respondent for a period of 14 days from 24 June 2021. A total of fourteen (14) objections were received and thirteen (13) submissions of support, and these submissions have been considered by the Respondent and by the Court.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conferences which were held on 23 February, 16 March and 11 April 2022. Due to the Covid 19 protocols in place at the time, and by agreement between the parties, the conciliation conference was held via teleconference following the view of the site. Council provided a copy of all resident objections in advance of the conciliation conference.

5. The proposed development for which consent is sought has been amended by the applicant (Amended Development Application) and formed the basis of discussions at the s34 conciliation conference. At the conciliation conference the parties reached an agreement, based on the amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties filed that agreement and agreed conditions of consent with the Court on 7 April 2022, and copies of relevant plans and documents referred in the agreement on 11 April 2022.

6. The main changes between the plans as originally submitted to Council and the Amended Development Application plans the subject of the s34 agreement are:

1. a reduction in overall building scale with a reduced FSR from 0.9:1 to 0.81:1;

2. a reduction in the footprint of Level 2 to 63% of the floor below to comply with the Randwick Development Control Plan 2013;

3. increased setbacks on the southern side from a minimum of 4m to 6.3m;

4. consolidated communal open space on the southern side increased to 430m²;

5. glazing to the lobby area;

6. additional planter boxes of 1m in depth on the east facing balconies to address privacy;

7. additional planter boxes of 950mm in depth on the south facing balconies to address privacy;

8. reduced overall length of breezeways on the ground floor; and

9. the fence height of 2m along the southern boundary with additional screen planting provided to address privacy.

7. 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 EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraphs 8 - 16 below.

Satisfaction of jurisdiction

8. The relevant jurisdictional matters in relation to the Randwick Local Environmental Plan 2012 (RLEP) are:

1. The proposed development is characterised as a residential flat building which is permissible with consent within the R3 Medium Density Residential zone under RLEP and is consistent with the zone objectives, which are set out in the Land Use Table of RLEP as “to provide for the housing needs of the community within a medium density residential environment” and “to provide a variety of housing types within a medium density residential environment.”

2. Consent for the demolition of the existing structures on the Site are sought as part of the Proposed Development pursuant to cl 2.7 of the RLEP. I am satisfied that demolition of the structures is acceptable provided the demolition is carried out in accordance with the relevant standards and demolition plan.

3. The maximum height of the Proposed Development, as amended, is 10.14m which contravenes by 0.64m, for a small portion of the roof form and lift overrun, the building height development standard of 9.5m in cl 4.3(2) of RLEP.

4. The parties agree that the written request seeking a variation to the height standard, prepared pursuant to cl 4.6 of the LEP is acceptable and should be upheld. For the reasons contained in the cl 4.6 variation request, I am satisfied that the applicant’s written request has demonstrated that compliance with the development standard is unnecessary or unreasonable in the circumstances of this case, and there are sufficient environmental planning grounds to justify contravening the development standard. The provisions of cl 4.6(3) of the RLEP are therefore satisfied.

5. I am also satisfied, for the reasons set out in the cl 4.6 variation request, that the written request has addressed how the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the R3 Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of RLEP are therefore satisfied.

6. Clause 4.4 specifies a maximum floor space ratio of 0.75:1 for the Site. The proposed development has an FSR of 0.81:1, which results in a minor variation of 0.06:1 or 8% of the development standard under RLEP. For the reasons contained in the cl 4.6 variation request, I am satisfied that the applicant’s written request has demonstrated that compliance with the development standard is unnecessary or unreasonable in the circumstances of this case, and there are sufficient environmental planning grounds to justify contravening the development standard. The provisions of cl 4.6 (3) of the RLEP are therefore satisfied.

7. I am also satisfied, for the reasons set out in the cl 4.6 variation request, that the written request has addressed how the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the R3 Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of RLEP are therefore satisfied.

8. The site is not located within the vicinity of any heritage items for the purposes of cl 5.10 of RLEP.

9. In relation to cl 6.1 of the RLEP concerning acid sulfate soils, the RLEP’s Acid Sulfate Soils Map shows the Site as not being in any of the 5 classes of land within that clause. Therefore, I am satisfied that there is no need for the preparation of an acid sulfate soils management plan to be prepared and the objectives of that clause are met.

10. Under cl 6.2(3) of the RLEP, development consent is required for earthworks to ensure they will not have a detrimental impact, unless the earthworks are (a) exempt development or (b) ancillary to development that is permitted without consent. In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider various matters set out in cl 6.2(3) before granting development consent. I am satisfied that the proposal will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items, or features of the surrounding land.

11. Under cl 6.4(3) the applicant has provided a concept stormwater management plan prepared by GHD Pty Ltd dated 2 June 2021. This plan confirms that the proposal will collect and dispose of stormwater in a controlled manner. I am satisfied that the requirements of this clause and its objectives to minimise the impacts of urban stormwater on the Site and adjoining properties has been met.

12. Under cl 6.10 of the RLEP, the consent authority must be satisfied that essential services are available or that adequate arrangements have been made to make them available. I am satisfied that the documents submitted with the original DA and the amended documents address the current and future provision of water and electricity supply, sewage disposal, stormwater drainage and suitable vehicular access from the Site.

9. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed.

10. A Preliminary Geotechnical Assessment of the Site was prepared by ei Australia dated 25 May and a Detailed Site Investigation (DSI) prepared by ei Australia dated 8 June 2021 to address the requirements of SEPP Resilience. The DSI on page 43 recommends that the applicant prepare a Remediation Action Plan (RAP).  The RAP on page 40 concludes that the site can be made suitable for the proposed land use through the implementation of the site remediation and validation process described in the RAP. Based on the conclusions in the RAP I am satisfied that Ch 4 of SEPP Resilience has been considered and addressed.

11. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an amended BASIX certificate prepared by Eco Certificates Pty Ltd dated 30 March 2022 has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the instrument.

12. In relation to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) and associated Apartment Design Guide (ADG):

1. The design quality principles of SEPP 65 and the relevant provisions of the ADG have been taken into consideration, and the parties agree the proposed development demonstrates that adequate regard has been given to them. Clauses 28 and 30 of SEPP 65 have therefore been satisfied.

2. The Amended DA is supported by a SEPP 65 Design Verification Statement prepared by PBD Architects dated March 2022 (Design Verification Statement) in satisfaction of the requirement in cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The Design Verification Statement confirms that the proposed development has been designed to be consistent with the design quality principles of SEPP 65 and displays a high level of compliance with the provisions of the ADG.

13. I note that the parties agree that the design of the amended proposal is compatible with the desired future character of the local area and that the Proposed Development is of a bulk and scale that is commensurate with that envisaged by the prescribed standards and controls. 

14. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) identifies a need for affordable housing on land within the Greater Sydney Region in which the site is located. Section 7.32(2)(b) of the EPA Act permits the imposition of a condition requiring the payment of a monetary contribution to be used for the purpose of providing affordable housing.

15. Part 3 of the SEPP ARH provides for contributions to be payable for a reduction in the availability of affordable housing in the Sydney Region, with a proposal for demolition, requiring contributions to be made in accordance with the NSW Family and Community Services Rent and Sales Report. The parties agree that the existing residential flat building on the Site contains low rental dwellings and constitutes a low rental residential building as defined under cl 47 of SEPP ARH.

16. Clause 50(1)(a) of SEPP ARH states that a condition may be imposed as a result of the demolition of the existing residential flat building at 205 Carrington Road and cl 51(2) authorises the imposition of a condition pursuant to s 7.32(2)(b) of the EPA Act. The condition requiring payment of a monetary contribution for the purpose of affordable housing has been calculated in accordance with cl 51(3) of SEPP ARH and I am satisfied that the requirements of the SEPP have been addressed in the conditions of consent in Annexure A.

Disposal of proceedings in accordance with the parties’ decision

17. 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’ agreement.

18. The Court notes that:

1. Randwick City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA/339/2021 in accordance with the documents listed below:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Cover Page	DA 000	2	28/02/2022	PBD Architects
Demolition Plan	DA 003	1	01/06/2021	PBD Architects
Basement Floor Plan	DA 100	2	28/02/2022	PBD Architects
Ground Floor Plan	DA 101	4	30/03/2022	PBD Architects
Level 1 Plan	DA 102	2	28/02/2022	PBD Architects
Level 2 Plan	DA 103	2	28/02/2022	PBD Architects
Roof Plan	DA 104	2	28/02/2022	PBD Architects
Elevations 01	DA 200	2	28/02/2022	PBD Architects
Elevations 02	DA 201	2	28/02/2022	PBD Architects
Sections	DA 300	2	28/02/2022	PBD Architects
Materials and Finishes	DA400	2	14/03/2022	PBD Architects
Area Calculations	DA500	2	28/02/2022	PBD Architects
Communal Open Space	DA540	2	28/02/2022	PBD Architects
Solar Access Diagram	DA610	2	28/02/2022	PBD Architects
Landscape plans
Ground Level	LA LP 01	5	22/03/2022	Black Beetle Pty Ltd
Level 1	LA LP 02	3	05/03/2022	Black Beetle Pty Ltd
Level 2	LA LP 03	3	05/03/2022	Black Beetle Pty Ltd
Legend, Notes and Plant Schedule	LA LP 04	4	22/03/2022	Black Beetle Pty Ltd
Reports
Amended Clause 4.6 Request – Floor Space Ratio prepared by ABC Planning Pty Ltd dated March 2022
Updated SEPP 65 Design Verification Statement prepared by PBD Architects dated March 2022.
Remediation Action Plan prepared by ei Australia dated 17 March 2022.
Amended BASIX Certificate No. 1206938M_03 prepared by Eco Certificates Pty Ltd dated 30 March 2022
Updated NatHERS Certificate No. 0006090170 prepared by Eco Certificates Pty Ltd dated 30 March 2022

2. The Amended Development Application documents were lodged on the NSW planning portal on 4 April 2022.

3. The Amended Development Application was filed with the Court on 11 April 2022.

19. The Court orders that:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendment to the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,620.00.

3. Development consent is granted to development application DA/339/2021 for the demolition of existing structures and construction of a 3-storey residential flat building with basement car parking, landscaping and associated works at 201-207 Carrington Road, Coogee, subject to the conditions of consent in Annexure A.

……………………….

L Sheridan

Acting Commissioner of the Court

Annexure A (455029, pdf)

**********

Decision last updated: 22 June 2022