Charas Developments 2 Pty Ltd v Randwick City Council

[2024] NSWLEC 1367

Land and Environment Court

New South Wales

Medium Neutral Citation:

Charas Developments 2 Pty Ltd v Randwick City Council [2024] NSWLEC 1367

Hearing dates:

Conciliation conference 21 March 2024

Date of orders:

02 July 2024

Decision date:

02 July 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application No Da 276/2023 and rely on the further amended application listed at [6] in the judgment.

(2) the Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 in the sum of $8,000.00

(3) The appeal is upheld

(4) Development consent is granted to Development Application number 276/2023 for construction of a proposed part 4, part 5 co-living development and includes: 20 rooms (8 single rooms, 11 double rooms and 1 Manager’s room) over two separate buildings; excavated basement level with parking for four cars; landscaping and associated works at 29 Byron Street, Coogee, is approved, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition, proposed co-living development, landscaping and associated works – conciliation conference – amended plans and information – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7

Land and Environmental Court Act 1979 (NSW) s 34

Environmental Planning and Assessment Regulations (NSW), s 23

Randwick Local Environmental Plan cll 4.3, 4.4, 4.6, 6.2

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, ss 67, 68, 69

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Texts Cited:

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Charas Developments 2 Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
V Conomos, solicitor (Applicant)
V McGrath, solicitor (Respondent)

Solicitors:
Conomos Legal (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/256038

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of development application No DA 276/2023 (the development application). The development application is an amending application seeking to amend a previous development application (DA 781/2021) which granted consent to demolition and construction of a 4-storey residential flat building. As amended, the development application the subject of these proceedings proposes the construction of a four-storey co-living development of 20 rooms with basement carparking, landscaping, and site works at 29 Byron Street, Coogee.

2. A conciliation conference was held between the parties on 21 March 2023 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. The conciliation conference was adjourned to allow ongoing discussions between the parties who have reached agreement as to the resolution of the contentions in the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to the annexed conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one 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 on the basis that:

1. The development application was made with the written consent of the registered proprietors of the lot which comprises the site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

2. Between 29 June and 13 July 2023, the development application was notified by the Respondent. Following notification, fifty submissions in objection were received by the Respondent. Further, at the commencement of the conciliation proceedings a number of submitters addressed the Court. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act.

3. The development application was lodged, but not finally determined prior to 1 October 2023. Hence, the now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the application rather than State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to SEPP BASIX and the EPA Regulation, the development application is a BASIX affected development. A BASIX certificate has been provided as part of the development application meeting the requirements of SEPP BASIX.

4. The development application is lodged under the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing), in particular Pt 3: Co-living housing. The following provisions of SEPP Housing are applicable to the development application:

1. The land the subject of the development is zoned R3 Medium Density Residential. As development for the purposes of a residential flat building is permitted in the R3 Medium Density Residential, pursuant to s 67 of SEPP Housing, development for the purposes of co-living housing may be carried out with consent on the land.

2. Section 68 provides the following non-discretionary development standards. Relevantly s 68 (2) (a) Floor space ratio (FSR) states:

(a) for development in a zone in which residential flat buildings are permitted—a floor space ratio that is not more than—

(i) the maximum permissible floor space ratio for residential accommodation on the land, and

(ii) an additional 10% of the maximum permissible floor space ratio if the additional floor space is used only for the purposes of co-living housing,

Applying s 68(2)(a) the applicable FSR is 0.99:1. The amended development application proposes a compliant floor space ratio of 0.975:1.

3. Section 68(2)(c) states that where a co-living housing development contains more than six private rooms it requires:

“(i) a total of at least 30m² of communal living area plus at least a further 2m² for each private room in excess of 6 private rooms, and

(ii) minimum dimensions of 3m for each communal living area,”

4. The development application includes internal communal areas that exceeds these minimum requirements.

5. Section 68(2)(d) ‘Communal open spaces’ requires the development to provide a communal open space with a total area of at least 20% of the site area and a minimum dimension of 3m. The architectural plans which form part of the development application demonstrate compliance.

6. Section 68(2)(e) details the parking requirements for co-living housing. The site is in an ‘accessible area’ and 0.2 spaces are required per private room. The development application complies with this requirement.

7. Clause 69(1) ‘Standards for co-living housing’ of SEPP Housing provides development standards for co-living housing. Development consent must not be granted for development for the purposes of co-living housing unless the consent authority is satisfied that the following standards are met:

(a) each private room has a floor area, excluding an area, if any, used for the purposes of private kitchen or bathroom facilities, that is not more than 25m2 and not less than—

(i) for a private room intended to be used by a single occupant—12m², or

(ii) otherwise—16m², and

(b) the minimum lot size for the co-living housing is not less than—

(i) for development on land in Zone R2 Low Density Residential—600m², or

(ii) for development on other land—800m², and

(iii) (Repealed)

(c) for development on land in Zone R2 Low Density Residential or an equivalent land use zone, the co-living housing—

(i) will not contain more than 12 private rooms, and

(ii) will be in an accessible area, and

(d) the co-living housing will contain an appropriate workspace for the manager, either within the communal living area or in a separate space, and

(e) for co-living housing on land in a business zone—no part of the ground floor of the co-living housing that fronts a street will be used for residential purposes unless another environmental planning instrument permits the use, and

(f) adequate bathroom, laundry and kitchen facilities will be available within the co-living housing for the use of each occupant, and

(g) each private room will be used by no more than 2 occupants, and

(h) the co-living housing will include adequate bicycle and motorcycle parking spaces.

8. In relation to s 69(1)(a) ‘Accommodation’ the architectural plans demonstrate that each of the private rooms comply with the nominated development standard.

9. The development application seeks a variation to the minimum lot size provision at s 69(1)(b). That provision requires the site to have a land area of 800m². The site of the development application has a total area of 577.76m². As such the development application proposes a variation to the site area standard at s 69(1)(b) of SEPP Housing utilising s4.6 ‘Exceptions to development standards’ in Randwick Local Environmental Plan 2012 (LEP 2012). The Applicant relies on a written request prepared by The Planning Studio, dated 9 April 2024, in support of the variation to the minimum lot size control. The written request addresses the matters set out at cl 4.6(3) of LEP 2012, including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (‘Initial Action’).

1. Pursuant to cl 4.6(3) of LEP 2012, the Court, in exercising the functions of the consent authority, must be satisfied of both matters in cl 4.6(3) being:

1. that compliance with the development standard in s 69(1)(b) of SEPP Housing is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2012); and,

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in s 69(1)(b) of SEPP Housing (cl 4.6(3)(b) of LEP 2012).

2. Only if the requirements in cl 4.6(3) are met, will the power in cl 4.6(2) to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23].

3. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the minimum lot size control in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.

4. The parties agree, and I accept, that the proposed development is in the public interest because it is consistent with the objectives of the Minimum Lot Size standard and the objectives for development within the R3 Medium Density Residential zone for the reasons detailed in the written request.

5. Having regard to all of the above matters I am satisfied that I should uphold the cl 4.6 variation request in relation to the Minimum Lot Size standard at s 69(1)(b) in SEPP Housing.

10. By reference to the architectural plans, I am satisfied that the co-living housing contains an appropriate workspace for the manager. I accept the agreement of the parties that there are adequate bathroom, laundry and kitchen facilities available within the co-living housing for the use of each occupant. Further, the application and the conditions confirm that each private room will be used by no more than 2 occupants, and include adequate bicycle and motorcycle parking spaces.

5. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires a consent authority to consider the contamination of land when determining a development application. The development application includes a Preliminary Site Investigation Report. That report concludes that the site is deemed suitable for the proposed (high density residential) development. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the development application.

6. The Statement of Environmental Effects (SEE) assesses the application against the provisions of Chapter 2, Vegetation in Non Rural Area in State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). Section 2.6 (1) of SEPP BC applies to the development application as it seeks consent for tree removal. The annexed conditions grant approval to that removal, consistent with the requirements of the section. The SEE and the architectural plans confirm that the native vegetation proposed for removal does not exceed the biodiversity offset threshold, satisfying s 2.6(2) of SEPP BC. Further, I am satisfied on the basis of the SEE and the development application that it does not involve clearing that is, or forms, part of a heritage item or a heritage conservation area, or is, or forms, part of an Aboriginal object or that is a known Aboriginal place of heritage significance.

7. LEP 2012 applies to the land.

1. As noted at [4(a)] the land is zoned R3 Medium Density Residential and residential flat development is permitted with consent in the zone. In determining the development application I have given consideration to the objectives of the R3 Medium Density Residential zone.

2. Pursuant to cl 4.3 ‘Height of Buildings’ specifies a maximum height of 12m to the site. The development application proposes a maximum height of 12.56m. The Applicant relies on a written request prepared by The Planning Studio, dated 9 April 2024, in support of the variation to the Height of Buildings standard. The written request addresses the matters set out at cl 4.6(3) of LEP 2012, including having regard to the tests set out in Initial Action.

1. Pursuant to cl 4.6(3) of LEP 2012, the Court, in exercising the functions of the consent authority, must be satisfied of both matters in cl 4.6(3) being:

1. that compliance with the development standard in cl 4.3 ‘Height of Buildings’ is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2012); and,

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.3 ‘Height of Buildings’ (cl 4.6(3)(b) of LEP 2012).

2. Only if the requirements in cl 4.6(3) are met, will the power in cl 4.6(2) to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23].

3. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the Height of Buildings standard in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.

4. The parties agree, and I accept, that the proposed development is in the public interest because it is consistent with the objectives of the Height of Buildings standard and the objectives for development within the R3 Medium Density Residential zone for the reasons detailed in the written request.

5. Having regard to all of the above matters I am satisfied that I should uphold the cl 4.6 variation request in relation to the building height standard at cl 4.3 ‘Height of Buildings’ of LEP 2012.

3. The extent of earthworks proposed by the development application are documented in the architectural plans. As required by cl 6.2 ‘Earthworks’ of LEP 2012, in granting consent to the development, with the assistance of the SEE and the geotechnical report submitted with the application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application.

4. Randwick Comprehensive Development Control Plan 2013 (DCP 2013) applies to the site. The SEE filed with the application details the compliance of the proposed development with DCP 2013. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, subs 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (subs 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

6. The Court notes that Randwick City Council as the relevant consent authority, has agreed under section 38(1) of the EPA Regulation to the Applicant amending Development Application No. DA 276/2023, in accordance with the following documents which were filed with the Court on 31 May 2024:

1. Revision D Architectural Plans, prepared by Mark Shapiro Architects, dated 29 April 2024;

2. Acoustic Impact Statement, prepared by Koikas Acoustics Pty Ltd, dated 19 April 2024;

3. Fire Engineering Letter, prepared by BCA Innovations Pty Ltd, dated 18 April 2024;

4. Plan of Management, prepared by The Planning Studio Pty Ltd, dated 29 April 2024;

5. Clause 4.6 Variation for Minimum Lot Size, prepared by The Planning Studio Pty Ltd, dated 9 April 2024;

6. Clause 4.6 Variation for Height, prepared by The Planning Studio Pty Ltd, dated 9 April 2024.

7. Preliminary Site Investigation Report, prepared by EI Australia Pty Ltd, dated 27 October 2021.

7. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application No DA 276/2023 and rely on the further amended application listed at [6] in the judgment.

2. the Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 in the sum of $8,000.00.

3. The appeal is upheld.

4. Development consent is granted to Development Application number 276/2023 for construction of a proposed part 4, part 5 co-living development and includes: 20 rooms (8 single rooms, 11 double rooms and 1 Manager’s room) over two separate buildings; excavated basement level with parking for four cars; landscaping and associated works at 29 Byron Street, Coogee, is approved, subject to the conditions of consent in Annexure A.

D Dickson

Commissioner of the Court

Annexure A

**********

Decision last updated: 02 July 2024