Emcon Group Pty Limited v Randwick City Council

[2023] NSWLEC 1508

Land and Environment Court

New South Wales

Medium Neutral Citation:

Emcon Group Pty Limited v Randwick City Council [2023] NSWLEC 1508

Hearing dates:

Conciliation conference on 25 August 2023

Date of orders:

07 September 2023

Decision date:

07 September 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA/433/2022 for demolition of the existing buildings and construction of a 4-storey residential flat building comprising 10 dwellings including 3 affordable dwellings with basement parking for 16 vehicles and landscape works, at 116-118 Marine Parade, Maroubra is determined by the grant of consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 29

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4.4, 6.1, 6.2, 6.4, 6.7, 6.10

State Environmental Planning Policy (Housing) 2021, Ch 2, ss 17, 19, 20

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002, cll 28, 30

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide (Duly 2015)

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Emcon Group Pty Limited (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
R White (Applicant)
S Flanigan (Respondent)

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

File Number(s):

2022/337345

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Randwick City Council’s deemed refusal of development application DA/433/2022 (the DA).

2. The DA, as amended, seeks consent for the demolition of existing structures and construction of a four-storey residential flat building containing 10 apartments with basement parking, and associated development, at 116-118 Marine Parade Maroubra, legally described as Lots 11 and 12 DP 7260 (the site).

3. This appeal first came before me as a contested hearing on 24 August 2023. After the first day of the hearing proceedings, which included a site inspection, there was a direct request from the parties that the Court arrange a conciliation conference in relation to the matter under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The parties indicated they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. I adjourned the hearing and soon after the Court agreed to this request of the parties.

4. This agreed decision of the parties involved the Court upholding the appeal and granting development consent to the DA under s 4.16 of the EPA Act, subject to agreed conditions.

5. 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.

6. There are certain jurisdictional pre-requisites which require attention before a function of granting consent to the DA can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in a note to the Court received by email on 25 August 2023. The note explained how jurisdictional matters have been or could be satisfied.

7. A sometimes relevant factor in these proceedings is that prior to parties’ request to move to a s 34 conference, I had the chance to hear certain sworn evidence from the planning and urban design experts in relation to the proposal. This arises later in my consideration of jurisdictional considerations. Of particular note is certain agreed changes to the proposal on the part of these urban design and planning experts as documented in a joint report which I marked as Ex 6 in the hearing proceedings. The principles of the agreed changes were adopted in the conciliated agreement as agreed consent conditions.

8. In regard to jurisdiction, and mindful of the parties’ jurisdictional note and the sworn evidence I received from these urban design and planning experts, I find as follows with regard to jurisdiction.

State Environmental Planning Policy (Resilience and Hazards) 2021

9. The parties advise that the site is mapped as “coastal environment area” and “coastal use area” pursuant to Ch 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards). In turn, the provisions of s 2.10 and 2.11 apply, respectively.

10. In relation to s 2.10 and the fact that the development is on land within the coastal environment area, the parties advise that consideration has been given to whether the proposed development is likely to cause an adverse impact on the matters listed at s 2.10(1). I too have given consideration to these seven areas. The parties further advise that they believe that the matters at s 2.10(2) have been satisfied. The development is quite separated from and not likely to bring any significant adverse consequences in the coastal environment area, with consent conditions as proposed. I am satisfied that the development is designed, sited and will be managed to avoid any adverse impact referred to in s 2.10(1), or if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact. This means I also am satisfied in relation to the matters at s 2.10(2).

11. In relation to s 2.11 and the fact that the development is on land within the coastal use area, the parties advise that consideration has been given to whether the proposed development is likely to cause an adverse impact on the matters listed at s 2.11(1)(a). I too have given consideration to these five areas. The parties further advise that they believe that the matters at s 2.11(1)(b) have been satisfied. Including as a consequence of the changes made to the development in accordance with the recommendations of the experts in Ex 6, I am satisfied that the development is designed, sited and will be managed to avoid any adverse impact referred to in s 2.11(1)(a), or if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact. This means I am also satisfied in relation to the matters at s 2.11(1)(b).

12. Section 4.6 of SEPP Resilience and Hazards requires that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. I accept the advice of the parties that the site has been in long term use for residential purposes, and that in such instances no further investigation in relation to contamination is required. The requirements of s 4.6 have been satisfied.

State Environmental Planning Policy (Housing) 2021

13. The DA is made mindful of the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). The proposal meets the definition of in-fill affordable housing under Ch 2, in that:

1. The site is zoned R3 Medium Density Residential under Randwick Local Environmental Plan 2012 (RLEP), wherein residential flat buildings are permissible with consent.

2. 20% of the proposed gross floor area is provided as affordable housing (proposed Units 1, 2, 4).

3. Development is within the Greater Sydney Region and in an accessible area (within 400m of a bus stop).

14. Section 17 provides for additional floor space ratio (FSR) for in-fill affordable housing. Relevant here is that 0.2:1 would be added to the applicable maximum FSR under RLEP cl 4.4 (reflecting the 20% of affordable housing within the subject development).

15. Relevant to s 19(3), and noting there is no jurisdictional finding required, I have considered whether the design of the residential development is compatible with: (a) the desirable elements of the character of the local area, and (b) the desired future character of the precinct.

16. Relevant to s 20, I note that under proposed Condition 4, Units 1, 2 and 4 must be used for affordable housing for at least 15 years. A registered community housing provider would be appointed to manage the affordable housing component of the development for this period.

17. The Court notes mention in the parties’ agreement that Council agreed under s.37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the applicant amending the DA to include a written request under cl 4.6 of RLEP. This written request applied to cl 18(2)(e) of SEPP Housing, concerning solar access. I do not need to make findings with respect to this written request because the provisions of cl 18(2)(e) of SEPP Housing are not a development standard which the proposal is otherwise required to comply with. Rather the provision is a standard, if complied with, which prevents the consent authority from requiring more onerous standards with respect to the relevant matter.

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

18. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 (SEPP 65) applies and requires consideration in relation to the design quality of the development.

19. The requirements of s 29 of the EPA 2021 have been met in that the applicant’s architect has prepared an updated design verification statement: (a) confirming his design qualifications and that he directed the design of the development, and (b) explaining how the design quality principles are achieved with the design and how the objectives in Parts 3 and 4 of the Apartment Design Guide (ADG) have been achieved (Design Verification Statement prepared by MHND Union dated 23 August 2023 and Design Report dated 23 August 2023 which I marked Ex C in the hearing proceedings).

20. Mindful of cl 28(2) of SEPP 65, I have taken into consideration: (a) the advice obtained from the design review panel (“endorsed recommendations” from Randwick Design Excellence Advisory Panel, dated 7 December 2022 and provided to the Court on 30 August 2023), (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the ADG.

21. Mindful of cl 30(2) of SEPP 65 and noting the support for the development as conditioned on the part of the experts appointed by the parties in relation to the hearing, I believe the development which is the subject of the agreement demonstrates adequate regard has been had to the design quality principles and the ADG objectives.

Randwick Local Environmental Plan 2012

22. Residential flat buildings are permissible within the applicable R3 Medium Density Residential zone under RLEP. Mindful of cl 2.3(2), I have had regard to the zone objectives which are:

1   Objectives of zone

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

•  To protect the amenity of residents.

•  To encourage housing affordability.

•  To enable small-scale business uses in existing commercial buildings.

23. I also note that demolition is permissible with consent under the provisions of cl 2.7.

24. The parties agree that the proposal complies with the applicable FSR control when the provisions of s 17 of SEPP Housing are factored in. There is also no dispute that the proposal complies with the relevant building height control.

25. Under cl 6.1, the site is identified as being located within a Class 5 acid sulfate soils area and is within 500 metres of adjacent Class 4 land that is below 5 metres Australian Height Datum. However, the watertable is not likely to be lowered below 1 metre Australian Height Datum on the adjacent Class 4 land. I accept the advice of the parties that, accordingly, cl 6.1 is not enlivened.

26. Clause 6.2 is concerned with earthworks. The parties have taken me to the relevant matters for consideration, which they advise have been properly attended to.

27. Clause 6.4 is concerned with stormwater management. The parties have pointed out to me the proposal’s response to relevant factors here, noting the significant areas of deep soil proposed, proposed consent conditions and BASIX certificate requirements relating to alternative water supply systems. In turn I am satisfied that the development, including through relevant conditions:

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

2. includes, as practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or to the extent that impact cannot be reasonably avoided, minimises, and mitigates the impact.

28. Under cl 6.7(2), the site is located within the Foreshore Scenic Protection Area. With the adoption of the agreed advice of the urban design and planning experts I am satisfied that the development: (a) is located and designed to minimise its visual impact on public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas, and (b) contributes to the scenic quality of the coastal foreshore.

29. Pursuant to cl 6.10, I note the site is in an established urban area and accept the advice of the parties that the following services are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access.

Remaining considerations under section 4.15(1) of the Environmental Planning and Assessment Act 1979

30. Randwick Development Control Plan 2013 applies, but jurisdictionally, nothing turns on this policy instrument.

31. The parties advise the proposal was notified in accordance with requirements. Copies of submissions were provided to the Court and I had the opportunity to hear a number of submissions from objectors and to attend a number of properties to gain an appreciation of the concerns raised. View loss and privacy impacts were key concerns. I note the changes recommended by the planning and urban design experts were directed substantially at addressing these concerns to the extent these experts thought was reasonable. Objecting submission have been taken into consideration in accordance with the requirement of s 4.15(1)(d) of the EPA Act.

32. I have given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of s 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

33. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

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

35. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA/433/2022 for demolition of the existing buildings and construction of a 4-storey residential flat building comprising 10 dwellings including 3 affordable dwellings with basement parking for 16 vehicles and landscape works, at 116-118 Marine Parade, Maroubra is determined by the grant of consent subject to the conditions of consent in Annexure A.

P Walsh

Commissioner of the Court

337345.22 Annexure A

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Decision last updated: 07 September 2023