HDH Investments Pty Ltd v Randwick City Council

[2021] NSWLEC 1761

Land and Environment Court

New South Wales

Medium Neutral Citation:

HDH Investments Pty Ltd v Randwick City Council [2021] NSWLEC 1761

Hearing dates:

Conciliation conference on 6 December 2021

Date of orders:

10 December 2021

Decision date:

10 December 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

1) The request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2000 (‘RLEP’) in relation to the non-compliance with the height of buildings development standard at clause 4.3 of the RLEP prepared by ABC Planning Pty Ltd dated October 2021 is upheld;

2) The appeal is upheld; and

3) Development application number DA/62/2020, for demolition of the existing structures, removal of trees, construction of a new three storey residential flat building containing nine units over a basement parking level, landscaping and associated works at 82 Yorktown Parade, Maroubra, is approved subject to the conditions in Annexure ‘A’

Catchwords:

APPEAL – development application – residential flat building with affordable housing dedication – breach of height development standard – conciliation conference – agreement reached

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl, 50, Sch 1

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 4.3, 4.6

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 13, 14, 16A

State Environmental Planning Policy (Housing) 2021, Sch 7

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

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

HDH Investments Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Randwick City Council (Respondent)

File Number(s):

2021/112337

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures, tree removal, and construction of a 3 storey residential flat building containing 9 units at 82 Yorktown Parade, Maroubra, with 4 units of affordable rental housing, basement car parking, landscaping and associated works. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 6 December 2021. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was reached on the basis that the amendment to the development application, which was lodged on the NSW Planning Portal with the agreement of the Council following orders made by the Acting Assistant Registrar on 10 November 2021, resolves all of the issues that were previously in dispute between the parties. The amended development application was notified on 16-30 November 2021.

4. 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, which was filed on 6 December 2021, is supported by a Jurisdictional Note that sets out the matters that the parties consider need to be satisfied before development consent can be granted.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application 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 LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R3 Medium Density Residential pursuant to the Randwick Local Environmental Plan 2012 (RLEP), and residential flat buildings are permissible in the zone.

• The development application relies on the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), and more than 20% of the proposed development will be dedicated as affordable housing (4 of 9 units). Clause 13(2) of the SEPP ARH provides that the maximum floor space ratio (FSR) for the development is the existing maximum FSR for any form of residential accommodation permitted on the land plus additional FSR that is calculated based on the percentage of floor space to be dedicated as affordable housing. The maximum permissible FSR pursuant to cl 13(2) of the SEPP ARH and based on the FSR of 0.75:1 permitted under the RLEP, is 1.179:1. The proposal complies with this maximum FSR, with a FSR of 1.126:1.

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 9.5m, pursuant to cl 4.3 of the RLEP. The proposed maximum height of 9.83m represents a contravention of 330mm above the numerical standard. The contravention is confined to the lift overrun which is substantially recessed to render it indiscernible from the street frontage. I am satisfied that:

1. The written request, lodged pursuant to cl 4.6 of the RLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows for the additional FSR allowable under the SEPP ARH to be accommodated within a main roof height and 3-storey built form that is generally consistent with the desired future character contemplated for the site and with the emerging development in the area. These environmental planning grounds are not contained under the heading that deals with environmental planning grounds (which focus on the absence of impacts, rather than on what informs the departure from the standard), but are contained on page 9 of the written request.

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, there is no impact caused by the breach of the standard, and the breach is negligible.

3. Based on the contents of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• Clause 16A of the SEPP ARH provides that a consent authority must not consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. I am satisfied, as set out in the written request lodged under cl 4.6 of the RLEP, that the design of the proposed development is compatible with the desired future character of the area and with the development underway in the street.

• The proposed development complies with each of the standards in cl 14 of the SEPP ARH.

• The development application in the Class 1 Application was accompanied by a statement of a qualified designer that verifies the design of the development, as required by cl 50(1A) and (1AB) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

• As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of residential uses, it is unlikely to be contaminated.

• The State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)) commenced on 26 November 2021. Schedule 7 includes a savings provisions, the effect of which is that the provisions of the SEPP ARH continue to apply to the development application.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court orders that:

1. The request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2000 (‘RLEP’) in relation to the non-compliance with the height of buildings development standard at clause 4.3 of the RLEP prepared by ABC Planning Pty Ltd dated October 2021 is upheld;

2. The appeal is upheld; and

3. Development application number DA/62/2020, for demolition of the existing structures, removal of trees, construction of a new three storey residential flat building containing nine units over a basement parking level, landscaping and associated works at 82 Yorktown Parade, Maroubra, is approved subject to the conditions in Annexure ‘A’

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (451644, pdf)

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Decision last updated: 10 December 2021