Golden Matilda Pty Ltd v Randwick City Council

[2021] NSWLEC 1713

Land and Environment Court

New South Wales

Medium Neutral Citation:

Golden Matilda Pty Ltd v Randwick City Council [2021] NSWLEC 1713

Hearing dates:

Conciliation conference on 6 and 24 August, 1 and 17 September 2021, final agreement filed 28 September 2021

Date of orders:

22 November 2021

Decision date:

22 November 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs that were thrown away because of amending the Development Application in the sum of $6,200.00.

(2) The appeal is upheld.

(3) Consent is granted to Development Application DA/688/2020, as amended, for the demolition of the existing structure and construction of a new 3 storey boarding house in two building blocks, comprising of 15 rooms, one communal room, 3 motorbike parking spaces and 8 bicycle spaces, 3 car parking spaces fronting Day Lane, associated site and landscaping works, at 13 Houston Road, Kensington, subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.10

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 28, 29, 30, 30A

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

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

Texts Cited:

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

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Golden Matilda Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2021/69498

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/688/2020 (DA) by Randwick City Council (the Respondent). The DA sought consent for the demolition of the existing building and construction of a new three storey boarding house in two building blocks, comprising a total of 15 boarding rooms, one caretaker room, one communal room, 3 motorcycle and 4 bicycle spaces, 3 car parking spaces fronting Day Lane, and associated site and landscaped area on land at 13 Houston Road, Kensington (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 6 and 24 August, and 1 and 17 September 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 DA remains substantially the same as the original DA, a series of changes cumulatively resolve the contentions raised by the Respondent, which in turn relate primarily to the provision of parking, solar access, accommodation size, private open space, local character and internal amenity, amongst other contentions.

6. The substantive design amendments include changes to the layout of some units, changes to fenestration, changes to the roof form and external wall heights, and changes to the setbacks and balustrade of the upper level when viewed from Day Lane.

7. It is also noted by the parties that the total number of lodgers has been reduced with the effect that a manager’s room is no longer required. Additionally, the amended DA incorporates earlier design changes introduced for the purposes of without prejudice discussions during the conciliation conference. These comprise the removal of a room, changes to the northern boundary setbacks and changes to the layout of private open space.

8. 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 DA.

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

10. In that regard, I am satisfied the DA was made with the consent of the Applicant, Golden Matilda Pty Ltd, which is the owner of the land. Owners consent to the lodgement of the DA is contained in the Class 1 Application documents in these proceedings.

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

12. The parties agree, and I am satisfied, that the amended DA is consistent with the R3 zone objectives as required by cl 2.3(2) of the RLEP, because the proposal contributes to a variety of housing types within a medium density residential environment.

13. The parties agree, and I am satisfied, that with the exception of cl 4.4 - Floor space ratio - all principal development standards of the RLEP have been met by the amended DA.

14. The parties agree, and I am satisfied, that while the maximum floor space ratio development standard set out at cl 4.4 of the RLEP is exceeded by the proposal, the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) establish a relevant floor space bonus, and the amended DA is consistent with this floor space bonus.

15. The parties agree, and I am satisfied, that those matters set out in cl 5.10 - Heritage conservation - of the RLEP have been considered, and that the site is not a heritage item, is not located in the vicinity of a heritage item, and is not in a heritage conservation area.

16. The parties agree, and I am satisfied, that those matters set out in cl 5.21 - Flood planning - of the RLEP have been adequately considered. It is noted the DA is supported by correspondence from the Respondent outlining the nature of the site being in a flood fringe and being categorised as low hazard.

17. The parties agree, and I am satisfied, that matters set out in cl 6.1 - Acid sulfate soils - of the RLEP do not arise as the site is not identified in the relevant map.

18. The parties agree, and I am satisfied, that matters set out in cl 6.2 - Earthworks - of the RLEP have been appropriately considered. The proposed earthworks and excavation are relatively minor and are agreed not to have a detrimental impact on soil stability or the amenity of neighbouring uses.

19. The parties agree, and I am satisfied, that matters set out in cl 6.4 - Stormwater management - of the RLEP have been appropriately considered. The amended DA incorporates on site detention, stormwater and rainwater collection and reuse, and sediment control.

20. The parties agree, and I am satisfied, that matters set out in cl 6.10 - Essential services - of the RLEP have been appropriately considered and that adequate services are available to support the development.

21. The parties agree, and I am satisfied, that the State Environmental Planning Policy 55—Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The parties agree the site and its immediate vicinity have historically been used for residential purposes and is therefore unlikely to be contaminated. As such, I am satisfied cl 7(1) of SEPP 55 has been appropriately addressed.

22. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of SEPP ARH. Pursuant to cl 28 of SEPP ARH, I am satisfied the proposed development is permissible with consent. Pursuant to cl 29, I am satisfied the proposed development complies with each of the relevant do not refuse standards.

23. Similarly, and pursuant to cl 30 of SEPP ARH, I am satisfied the proposed development complies with each of the relevant development standards. Additionally, and pursuant to cl 30A, I am satisfied the proposed development is compatible with the character of the local area. I note the parties’ agreement that a series of design refinements incorporated into the final amended DA - including the pitched roof, increased building articulation, revised material selection and revised relationship to Day Lane - each serve to establish an appropriate compatibility with the character of the local area.

24. I am satisfied a BASIX certificate, dated 21 September 2021, has been submitted in support of the amended DA, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX certificate.

25. Finally, in accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the amended DA has been publicly notified to nearby residents, submissions received in response have been considered, and that the parties have appropriately taken these concerns into account in reaching agreement. Accordingly, I am satisfied the amended DA is in the public interest and may be granted consent.

26. 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.

27. Accordingly, the Court notes that:

1. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the Development Application with the consent of the Respondent.

2. The Applicant has uploaded the amended Development Application to the NSW Planning Portal on 23 and 27 September 2021, comprising the documents and plans set out in Condition 1 of Annexure A.

3. The Applicant has filed the amended Development Application with the Court on 28 September 2021.

Orders

28. The Court orders that:

1. Pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs that were thrown away because of amending the Development Application in the sum of $6,200.00.

2. The appeal is upheld.

3. Consent is granted to Development Application DA/688/2020, as amended, for the demolition of the existing structure and construction of a new 3 storey boarding house in two building blocks, comprising of 15 rooms, one communal room, 3 motorbike parking spaces and 8 bicycle spaces, 3 car parking spaces fronting Day Lane, associated site and landscaping works, at 13 Houston Road, Kensington, subject to the conditions contained in Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (380252, pdf)

Architectural Plans (524656, pdf)

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Decision last updated: 22 November 2021