Cracknell & Lonergan Architects Pty Ltd v Randwick City Council

[2022] NSWLEC 1394

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cracknell & Lonergan Architects Pty Ltd v Randwick City Council [2022] NSWLEC 1394

Hearing dates:

Conciliation conference held on 3 June 2022

Date of orders:

26 July 2022

Decision date:

26 July 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

1) The appeal is upheld.

2) The written request made pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 to justify the contravention of the height development standard in cl 4.3, as prepared by Cracknell & Lonergan Architects Pty Limited and dated 15 June 2022, is upheld.

3) Development application DA/547/2021, as amended, for the demolition of existing structures and construction of a three-storey boarding house comprising 15 boarding rooms, communal area, parking for motor vehicles and bicycles, with landscaping and associated works at Lot 1 in DP 100089, also known as 7-7A Houston Road, Kensington, is determined by the grant of consent, subject to the conditions of consent at Annexure ‘A’.

4) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,000.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – non-compliant height development standard – cl 4.6 written request to vary development standard - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.3, 4.3, 4.6

State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30A

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

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

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Cracknell & Lonergan Architects Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
C Campbell (Solicitor)(Applicant)
V McGrath (Solicitor)(Respondent)

Solicitors:
Sparke Helmore (Applicant)
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2022/46910

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) DA547/2021 by the Randwick City Council (hereafter the Council) which as amended seeks demolition of existing structures and construction of a three-storey boarding house comprising 15 boarding rooms, communal area, parking for motor vehicles and bicycles, with landscaping and associated works, on Lot 1 in DP 100089, also known as 7-7A Houston Road, Kensington (the site).

Background

2. The DA was submitted to Council on 2 September 2021, and after notification, made consistent with the relevant planning controls, four submissions in objection were received during the notification period.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. As part of the conciliation, the applicant sought to amend the DA under appeal, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), which was agreed by the Council. Relevant plans and documents which amend the DA, were uploaded to the NSW Planning Portal. The amended plans were not re-notified by Council as the amendments to the DA were deemed positive in resolving issues of the original DA.

5. The Court agreed to a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held in person and with an onsite view at the request of the parties. Two resident objectors provided oral submission at the conciliation.

6. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been satisfied. The decision of the parties is to uphold the appeal and grant consent to DA/547/2021, with conditions.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to development application DA/547/2021, subject to conditions described in Annexure ‘A’, made pursuant to s 4.17(1).

Jurisdictional prerequisites

8. The DA was submitted with the consent of the site owners, pursuant to cl 49 of the EPA Reg.

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining the development application. The following jurisdictional requirements have been specifically assessed:

1. Randwick Local Environmental Plan 2012 (RLEP):

1. Pursuant to cl 2.3 of the RLEP, the site is situated over land zoned R3 Medium Density Residential. The proposed development, as described to the Court is permissible with consent, pursuant to cl 2.3. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the RLEP, however, there is a resultant breach of the height standard (of 9.5m) for the proposed boarding house by less than 0.38m (<4%), pursuant to cl 4.3.

2. The amended DA relies on a written request, seeking a variation of the non-compliant height standard, pursuant to cl 4.6 of the RLEP. The cl 4.6 written request provided to the Court explains that the non-compliance in the height standard responds to flood affectation and architectural design, and does not result in a development that is incompatible with the character of the surrounding area or results in adverse amenity to existing dwellings on the site or adjacent to the site. The elements of the proposed development (being the central roof form) that result in the non-compliance will not perceptibly change the presentation of the proposed building to the streetscape or result in adverse bulk/scale impacts to adjoining developments. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and the relevant (height) development standard for cl 4.3.

3. The Court must be satisfied that the request to vary the (height) standard is appropriately addressed, pursuant to the requirements in cl 4.6 of the RLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the height standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (for the R3 zone) and height (cl 4.3) standard. The breach in the height standard, which is limited to the central portion of the roof form, will not cause undue concern to surrounding residents, the streetscape, or those utilising the site. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the height standard for the proposed development.

4. I am satisfied that the requirements of cl 4.6 of the RLEP have been addressed, and that a variation in the cl 4.3 height development standard should be granted.

2. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH):

1. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP ARH. Specifically, the proposed boarding house is compatible with the character of the local area, as required by cl 30A of SEPP ARH.

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

1. The proposed development complies with the provisions of the SEPP BASIX. A BASIX Certificate (1229472M_02), relevant to the proposed development as amended, is identified in the conditions of consent.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The Court is advised that the site has historically been used for residential purposes, and together with the agreed conditions of consent, addresses the relevant requirements of cl 4.6 of SEPP Resilience.

5. Randwick Development Control Plan 2013 (RDCP):

1. The relevant requirements of the RDCP are addressed, based on the amended plans, supporting documents to the DA and conditions of consent. The original DA was publicly notified in accordance with the RDCP with four submissions received. According to the parties have been considered in their merit assessment and any issues raised have been addressed.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement, or for the Court in making the orders as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions and environmental/architectural context of the site.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA/547/2021 can be determined by the grant of consent.

13. 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.

14. The Court notes that:

1. The respondent, as the relevant consent authority has agreed to the applicant amending DA/547/2021, pursuant to cl 55(1) of the EPA Reg

2. The relevant amended development application documents were lodged on the NSW Planning Portal on 18 July 2022.

3. The documents supporting the amended development application was filed with the Court on 19 July 2022.

15. The Court orders that:

1. The appeal is upheld.

2. The written request made pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 to justify the contravention of the height development standard in cl 4.3, as prepared by Cracknell & Lonergan Architects Pty Limited and dated 15 June 2022, is upheld.

3. Development application DA/547/2021, as amended, for the demolition of existing structures and construction of a three-storey boarding house comprising 15 boarding rooms, communal area, parking for motor vehicles and bicycles, with landscaping and associated works at Lot 1 in DP 100089, also known as 7-7A Houston Road, Kensington, is determined by the grant of consent, subject to the conditions of consent at Annexure ‘A’.

4. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,000.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (452463, pdf)

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Decision last updated: 26 July 2022