D-Studio Architects Pty Ltd v Randwick City Council

[2025] NSWLEC 1049

Land and Environment Court

New South Wales

Medium Neutral Citation:

D-Studio Architects Pty Ltd v Randwick City Council [2025] NSWLEC 1049

Hearing dates:

Conciliation conference on 17 October and 12 December 2024

Date of orders:

29 January 2025

Decision date:

29 January 2025

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development consent for DA/208/2024 for the demolition of existing structures and construction of 5 and a 9 storey shop top housing development separated by a central through site link with ground floor commercial tenancies/SOHO units and residential dwellings on floors above, two basement levels accommodating 41 car parking spaces, communal open spaces, removal of trees, amalgamation of existing lots, associated site and landscape works on the land at 6-10 Bowral Street, Kensington, is determined by the grant of consent subject to the conditions of consent in Annexure 'A'.

(3) The Applicant is to pay the Respondent's costs "thrown away" as a result of the amendments to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

Catchwords:

DEVELOPMENT APPEAL – shop top housing development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7

Land and Environment Court Act 1979, s 34

Airports Act 1996, s 183

Water Management Act2000

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Randwick Local Environmental Plan 2012, cll 2.7, 4.3, 6.2, 6.4, 6.8, 6.10, 6.11, 6.17, 6.20, 6.26

State Environmental Planning Policy (Housing) 2021, s 145, 147, Sch 9

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48, 2.122

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

D-Studio Architects Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor)(Applicant)
J Corradini Bird (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/190152

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA/208/2024 (DA) by Randwick City Council (Council).

2. D-Studio Architects Pty Ltd seeks consent for the demolition of existing structures and construction of a 5 and 9 storey shop top housing development separated by a central through site link with ground floor commercial tenancies/Small Office Home Office (SOHO) units and residential dwellings on floors above, two basement levels accommodating 41 car parking spaces, communal open spaces, removal of trees, amalgamation of existing lots, and associated site and landscape works on the land at 6-10 Bowral Street, Kensington, legally described as Lots 1 and 2 in DP 130135, Lot 1 in DP 172438 and Lot 11 in DP 828574 (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (Court Act), at which I presided. The conference was held on 17 October and 12 December 2024.

4. Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the Court 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.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a jurisdiction statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the statement together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.

Jurisdictional considerations

7. As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

Integrated development

8. The parties advise that the DA is integrated development for the purposes of s 4.46 of the EPA Act, as the proposal requires approval under the Water Management Act2000. Water NSW provided General Terms of Approval (GTAs) which have been incorporated into the conditions of consent (the conditions of consent are provided at Annexure A to this judgment).

State Environmental Planning Policy (Resilience and Hazards) 2021

9. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 and the parties agree that the site has a long history of residential use and therefore contamination is unlikely. The conditions include a requirement for a preliminary site investigation to be prepared and submitted prior to the issue of a construction certificate. The requirements of s 4.6 are met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

10. The DA was referred to Transport for NSW (Transport) as traffic-generating development under s 2.122 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure). Transport advised that it does not object to the proposal and provided conditions which have been incorporated into the conditions of consent.

11. The DA was referred to Ausgrid under s 2.48 of SEPP Transport and Infrastructure. Ausgrid advised that it does not object to the proposal and provided comments which have been incorporated into the conditions of consent.

State Environmental Planning Policy (Housing) 2021

12. Pursuant to s 145 of the State Environmental Planning Policy (Housing) 2021, the Randwick Design Excellence Advisory Panel (RDEAP) considered the development application and provided advice which informed amendments to the proposal.

13. Pursuant to s 147, the parties submit and I accept that:

• The design verification statement prepared by D-Studio Architects dated 15 February 2024, and the compliance table prepared by Planning Ingenuity (19 March 2024) adequately assesses the proposed development against the design quality principles set out in Sch 9 and the Apartment Design Guide (ADG) (s 147(1) and (2)).

• The development application has been significantly amended and is now consistent with the design quality principles, ADG and advice of RDEAP.

14. The proposed development complies with the non-discretionary standards in s 148.

Randwick Local Environmental Plan 2021

15. The site is located within Zone E2 Commercial Centre. Development for the purpose of ‘residential flat building’ and ’shop top housing’ are permissible with consent.

16. The parties agree and I accept that the DA is consistent with the aims of Randwick Local Environmental Plan (RLEP) and with the objectives of the E2 zone, including:

1 Objectives of zone

…

To encourage investment in commercial development that generates employment opportunities and economic growth.

To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

…

17. Demolition is permissible with consent under cl 2.7 of RLEP.

18. The proposal does not comply with the maximum height limits applying to the land under cll 4.3 and 6.17 of RLEP. Building B has a maximum height of 20.73m, a variation of 1.73m (9.1%) above the 19m height limit. Building A is within the Kensington Town Centre where an alternative maximum of 31m is allowed subject to meeting certain requirements (discussed below). Building A has a maximum height of 31.39m, a variation of 0.39m or 1.2%.

19. Notwithstanding, I am satisfied that consent should be granted as the contravention arises as a result of the lift overrun and services on the rooftop. I consider that the proposed non-compliance is minor, does not give rise to any significant adverse impacts particularly when compared to a compliant development and the shadow impacts. Having regard to the circumstances of the case I am satisfied, based on the written request prepared by Planning Ingenuity (4 November 2024) lodged pursuant to cl 4.6 of RLEP, that:

• sufficient environmental planning grounds have been established that justify the breach in the height of building development standard by demonstrating that the proposed non-compliance is a result of the lift overrun and servicing on the rooftop,

• compliance with the height of building development standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the development standard notwithstanding the non-compliance and will not result in any adverse impacts, and

• the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

20. I accept the advice of the parties that the DA complies with the other development standards under RLEP.

21. Clause 6.2 applies because the DA proposes excavation works on the site. Before granting consent, subcl (3) requires specific matters to be taken into consideration. In accordance with cl 6.2, I have considered the relevant matters and am satisfied that the Geotechnical Report (EI Australia dated 21 February 2024), Landscape Plan, Stormwater Plans and various conditions of consent in Annexure A will ensure that the proposed earthworks do not give rise to any adverse environmental impacts.

22. The parties have considered the matters set out in cl 6.4(3). Based on their advice and the stormwater plan (Henry & Hymes dated 19 March 2024), I am satisfied the proposed stormwater and drainage works meet the relevant requirements of this section.

23. Pursuant to cl 6.8, the application was referred to Sydney Airport Corporation for approval as a controlled activity under s 183 of the Airports Act 1996 (Cth). Sydney Airport Corporation has advised that it does not object to the application subject to recommended conditions of consent which have been included.

24. The site is currently serviced by water, electricity, sewage disposal and stormwater drainage as well as direct vehicular access, as required by cl 6.10. Further Sydney Water has advised that it does not object to the application subject to recommended conditions of consent which have been included.

25. The proposed development provides a high quality contemporary form which is representative of the desired future character of the locality as envisaged by RLEP. In accordance with cl 6.11, I am satisfied that the proposal achieves design excellence.

26. Community infrastructure is required to be provided on the site to access the alternative height limit under cl 6.17. Landmax has provided a Letter of Offer to enter into a Voluntary Planning Agreement for the delivery of part Works-In-Kind (including a public domain upgrade and green grid links) and part Monetary Contribution associated with the DA and the Site. Drawing A001 (Rev 8) prepared by D-Studio Architects dated 30 October 2024 confirms that the DA will include 'community infrastructure on the site' in accordance with cl 6.17.

27. The parties advise and I accept that the proposal meets the requirement for active street frontages (cl 6.20).

28. The agreed conditions of consent include a condition requiring an affordable housing contribution (condition 98). This condition is made pursuant to, and meets the requirements of, cl 6.26.

29. Other considerations

30. Owner's consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EPA Reg.

31. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions.

32. Three submissions were received during the exhibition period. Council advises that all submissions have been considered and are satisfactorily addressed in the DA and conditions of consent.

33. The parties advise that the proposal was referred to NSW Police and their recommendations have been incorporated into the conditions of consent.

34. The parties also advised me that they have considered Randwick Development Control Plan 2013 and that the proposal is generally compliant or otherwise satisfactory in their considered view.

Conclusion

35. Based on the above details, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

36. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

37. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders:

38. The Court orders:

1. The appeal is upheld.

2. Development consent for DA/208/2024 for the demolition of existing structures and construction of 5 and a 9 storey shop top housing development separated by a central through site link with ground floor commercial tenancies/SOHO units and residential dwellings on floors above, two basement levels accommodating 41 car parking spaces, communal open spaces, removal of trees, amalgamation of existing lots, associated site and landscape works on the land at 6-10 Bowral Street, Kensington, is determined by the grant of consent subject to the conditions of consent in Annexure 'A'.

3. The Applicant is to pay the Respondent's costs "thrown away" as a result of the amendments to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

A Thorpe

Acting Commissioner of the Court

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Annexure A

Decision last updated: 29 January 2025