Freedom Development Group Pty Ltd v Randwick City Council

[2019] NSWLEC 1410

Land and Environment Court

New South Wales

Medium Neutral Citation:	Freedom Development Group Pty Ltd v Randwick City Council [2019] NSWLEC 1410
Hearing dates:	30 August 2019 conciliation conference
Date of orders:	03 September 2019
Decision date:	03 September 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A. (2) The appeal is upheld. (3) Development Application DA 847/2018 seeking approval for the demolition of 2 existing dwelling houses and the erection of a three storey boarding house and one below ground basement car park is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPEAL: affordable rental housing - boarding house - conciliation conference - agreement between parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Freedom Development Group Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: Conomos Legal (Applicant) HWL Ebsworth Laywers (Respondent)
File Number(s):	2019/3439
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the City of Randwick Council (the Respondent) of Development Application No. 847/2018 (DA) seeking approval for the demolition of 2 existing dwelling houses and the erection of a three storey boarding house with a total of 82 rooms and one below ground basement car park , with 27 car spaces at 31-33 Wansey Road, Randwick.

2. The DA was notified to surrounding residents on 28 November 2018, and 22 resident objections were received in response. The Applicant lodged the appeal with the Court on 4 January 2019 but subsequently amended the plans responsive to the contentions contained in the Respondent’s Statement of Facts and Contentions, and to objector submissions.

3. The Respondent re-notified the amended plans to surrounding residents on 10 July 2019 and received submissions that expressed concern in relation to bulk, scale, character and social impacts, traffic and parking and overshadowing impacts.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 August 2019. I presided over the conciliation conference.

5. 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. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 August 2019.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development by grant of the Certificate subject to agreed conditions annexed to the s 34 agreement.

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. There are jurisdictional prerequisites contained in the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), and the Randwick Local Environmental Plan 2012 (RLEP).

8. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [11]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R3 Medium Density Residential zone under the RLEP in which boarding house development is permitted with consent.

2. As the SEPP ARH applies to the development, I have considered the standards for boarding houses, set out in cl 30 and am satisfied that the proposed development is consistent with the provisions of sub cll (1)(a)-(h).

3. I am also satisfied that the design of the proposed development is consistent with the character of the local area as required by cl 30A of the SEPP ARH, with particular consideration of the front landscaped setback of 6m, and compliant height of the building, floor space ratio, landscaping and deep soil as required by the RLEP.

4. I note that the setback to the south east of the proposed development of 3m is less than the 4m required by the Randwick Development Control Plan (RDCP) but I consider this variation from the RDCP to be acceptable as it does not result in adverse solar impact on the adjoining property.

9. 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 LEC Act.

10. 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.

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

12. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.

2. The appeal is upheld.

3. Development Application DA 847/2018 seeking approval for the demolition of 2 existing dwelling houses and the erection of a three storey boarding house and one below ground basement car park is approved subject to the conditions in Annexure A.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (331 KB)

Plans LS02 (2.69 MB)

Architectural Plans (910 KB)

Architectural Plans (2.99 MB)

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