Collard Maxwell Architects Pty Ltd v Randwick City Council

[2021] NSWLEC 1807

Land and Environment Court

New South Wales

Medium Neutral Citation:

Collard Maxwell Architects Pty Ltd v Randwick City Council [2021] NSWLEC 1807

Hearing dates:

Conciliation conference on 15 October, 9, 23 November, 10 and 20 December 2021, final agreement filed 21 December 2021

Date of orders:

30 December 2021

Decision date:

30 December 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

1) Leave is granted to the Applicant to amend Development Application DA/352/2019 and rely on the amended plans and documents listed at condition 1 of Annexure A.

2) Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the amount of $12,000 within 28 days of these orders.

3) The appeal is upheld.

4) The Applicant’s written request made pursuant to cl 4.6 of Randwick Local Environmental Plan 2012 (RLEP) seeking to vary the development standard set out at cl 4.3 - Height of buildings - of the RLEP, prepared by Planning Ingenuity and dated 17 December 2021 is upheld.

5) Consent is granted to Development Application DA/352/2019, as amended, for the demolition of existing structures and the construction of a mixed use building comprising a ground floor health services facility with waiting room and reception areas, 3 consulting rooms, tea and store rooms, 12 residential apartments across four upper levels, and 8 car parking spaces, at 10 Blenheim Street, Randwick, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed-use – residential apartment development – cl 4.6 written request – agreement between the parties – orders

Legislation Cited:

Randwick Local Environmental Plan 2012, cll 2.7, 4.3, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.10

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 50

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy (Infrastructure) 2007, cl 57

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28

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

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Randwick Development Control Plan 2013

Apartment Design Guide

Category:

Principal judgment

Parties:

Collard Maxwell Architects 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):

2021/168588

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA/352/2019 (DA) by Randwick City Council (the Respondent). The DA sought consent for demolition of the existing structure and the construction of a new 5 storey mixed use development comprising a residential flat building containing 15 apartments with a health service facility on the ground floor and basement parking, at 10 Blenheim Street, Randwick (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 October, 9, 23 November, 10 and 20 December 2021. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams.

4. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Whilst the amended Application remains substantially the same as the original DA, a series of changes cumulatively resolve the contentions initially raised by the Respondent, which in turn relate primarily to building height, building envelope, amenity, privacy, streetscape, traffic and parking amongst other contentions.

6. Of note, the amended DA has reconfigured the general arrangement of the proposed building to more closely reflect the indicative layout plan described at Section 2.3 of Part E2 of the Randwick Development Control Plan 2013 (RDCP), and has addressed the shortfall of parking to the satisfaction of the Respondent.

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 amended Development Application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The parties agree, and I am satisfied, the Randwick Local Environmental Plan 2012 (RLEP) is a relevant environmental planning instrument. The site is zoned R3 Medium Density Residential, and the proposed development is permissible with consent.

11. The parties agree, and I am satisfied, that the DA is consistent with the R3 zone objectives of the RLEP, which include providing for the housing needs of the community and enabling land uses that provide for services to meet the day to day needs of the residents.

12. The parties agree, and I am satisfied, that demolition is permissible with consent and hence cl 2.7 - Demolition requires consent - of the RLEP is addressed.

13. The parties agree, and I am satisfied, that with the exception of cl 4.3 - Height of Buildings, all principal development standards of the RLEP have been met by the proposal.

14. The parties agree, and I am satisfied, that the maximum height of building development standard set out at cl 4.3 of the RLEP and applicable to the site, is 15m.

15. The amended Development Application exceeds the maximum height of building development standard by 0.415m attributable primarily to a portion of two shallow-pitched hipped roof forms.

16. In such an instance, cl 4.6(3) of the RLEP requires consideration of a written request from the Applicant demonstrating compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

17. Clause 4.6(4) of the RLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

18. Additionally, cl 4.6(4)(b) of the BLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.

19. As required by cl 4.6 of the RLEP, the Applicant has provided a written request (prepared by Planning Ingenuity and dated 17 December 2021) seeking to vary the height of building development standard. The parties agree, and I am satisfied, that the written request adequately justifies the exceedance of the height of building development standard for the following reasons.

20. The height variation of up to 0.415m represents a proposed variation to the development standard of 2.8%. The variation results from the provision of adequate floor to floor heights across the various levels of the building that would otherwise not be achieved. The amended DA presents as a four storey building form with the upper-most level set back to recede from view. The variation in building height brings with it no material environmental impacts or additional overshadowing.

21. The parties agree, and I am satisfied, that those matters set out in cl 5.10(5) - Heritage conservation - of the RLEP have been adequately addressed. It is noted the site is not a heritage item and is not located within a heritage conservation area. However, the site is located in the vicinity of a heritage item, being Blenheim House. The Respondent accepts that a heritage management document is not required.

22. The parties agree, and I am satisfied, that those matters set out in cl 5.21 - Flood planning - of the RLEP have been adequately addressed and issues relating to the potential for flooding are resolved. The parties note the site is presently unaffected by flooding.

23. The parties agree, and I am satisfied, that those matters set out in cl 6.1 - Acid sulfate soils - of the RLEP have been adequately addressed. It is noted that matters pertaining to acid sulfate soils do not arise as the site is not identified within the relevant acid sulfate soils maps.

24. The parties agree, and I am satisfied, that matters set out in cl 6.2 - Earthworks - of the RLEP have been adequately addressed. It is noted the proposed earthworks and excavation will not have a detrimental impact on the soil stability or the amenity of the neighbouring uses and appropriate conditions of consent are imposed.

25. The parties agree, and I am satisfied, that matters set out in cl 6.4 - Stormwater management - of the RLEP have been appropriately demonstrated, and the amended DA improves this aspect of the development by maximising water permeability to support on-site infiltration.

26. The parties agree, and I am satisfied, that matters set out in cl 6.10 - Essential services - of the RLEP have been appropriately demonstrated, and the site is currently adequately serviced.

27. The parties agree, and I am satisfied, that State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The historical residential uses of the site and surrounds are unlikely to cause contamination. As such, I am satisfied cl 7(1) of SEPP 55 has been appropriately addressed.

28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) is an additional relevant environmental planning instrument. Clause 57 of SEPP Infrastructure makes permissible development for the purposes of health service facilities on land in the R3 Medium Density Residential zone.

29. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Applicant's nominated architect, Mr Charles Fortin (registered architect 8208), has prepared a Design Verification Statement dated 20 December 2021, fulfilling the requirements of cl 50(1AB) of the EPA Reg.

30. Additionally, the parties agree, and I am satisfied, that pursuant to cl 28 of SEPP 65, assessment of the DA has taken into consideration the SEPP’s design quality principles and the Apartment Design Guide.

31. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). A BASIX certificate has been submitted with the DA (as amended). Conditions of consent are imposed to ensure compliance with the BASIX certificate.

32. The parties agree, and I am satisfied, that matters set out at s 4.15(1) of the EPA Act have been appropriately addressed. The original DA was notified in accordance with the Respondent’s notification policy, and 12 submissions were received in response. Two further oral submissions were received by the Court at the commencement of the conciliation conference.

33. The assessment of the final amended DA takes into consideration, and addresses, issues raised in these submissions, particularly parking, the provision of affordable housing, scale, bulk and character, and achievement of cross ventilation and solar access.

34. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

35. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/352/2019 and rely on the amended plans and documents listed at condition 1 of Annexure A.

2. Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the amount of $12,000 within 28 days of these orders.

3. The appeal is upheld.

4. The Applicant’s written request made pursuant to cl 4.6 of Randwick Local Environmental Plan 2012 (RLEP) seeking to vary the development standard set out at cl 4.3 - Height of buildings - of the RLEP, prepared by Planning Ingenuity and dated 17 December 2021 is upheld.

5. Consent is granted to Development Application DA/352/2019, as amended, for the demolition of existing structures and the construction of a mixed use building comprising a ground floor health services facility with waiting room and reception areas, 3 consulting rooms, tea and store rooms, 12 residential apartments across four upper levels, and 8 car parking spaces, at 10 Blenheim Street, Randwick, subject to the conditions in Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

(Annexure A) (436097, pdf)

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Decision last updated: 30 December 2021