HSN Hospitality No 2 Pty Ltd v Randwick City Council

[2025] NSWLEC 1506

Land and Environment Court

New South Wales

Medium Neutral Citation:

HSN Hospitality No 2 Pty Ltd v Randwick City Council [2025] NSWLEC 1506

Hearing dates:

Conciliation conference on 25 June 2025

Date of orders:

18 July 2025

Decision date:

18 July 2025

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed within 28 days of the date of these Orders.

(3) Development Application No. DA/530/2024   for partial demolition, alterations and adaptive re-use of existing buildings at No. 11-13 Abbotford Street, demolition of existing building at No. 9 Abbotford Street, and the construction of a 9-storey co-living development comprising 120 co-living rooms, two (2) basement levels, communal areas and open space, spread across the three (3) properties at 9, 11 and 13 Abbotford Street Kensington, legally known as SP 12920; Lot 2 in DP 786825; and Lot 1 in DP 786825 is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPEAL — residential development — co-living — conciliation conference — agreement between the parties — orders

Legislation Cited:

Airports Act 1996 (Cth), s 183

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Randwick Local Environmental Plan 2012, cll 2.7, 4.6, 5.10, 6.2, 6.4, 6.8, 6.10, 6.11, 6.27

State Environmental Planning Policy (Housing) 2021, Ch 3 Pt 3, s 68

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

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

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

HSN Hospitality No 2 Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
M Astill (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens (Respondent)

File Number(s):

2024/386725

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/530/2024 (DA) by Randwick Council.

2. The DA, as amended, seeks consent for partial demolition, alterations and adaptive re-use of existing buildings at 11-13 Abbotford Street, demolition of existing building at 9 Abbotford Street, and the construction of a 9-storey co-living development comprising 120 co-living rooms, two (2) basement levels, communal areas and open space, spread across the three (3) properties at 9, 11 and 13 Abbotford Street Kensington, legally known as SP 12920 Lot 2 in DP 786825; and Lot 1 in DP 786825 (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 25 June 2025.

4. The parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 24 June 2025. The terms include further amendments to the plans. 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. Broadly, the amendments are as follows:

1. Reduction of the street wall height from 7-storeys to 6-storeys to Abbotford Street, through increased setbacks to level 6 and reconfiguration of co-living apartments on levels 7 and 8;

2. Increasing the front setback of the new building to Abbotford Street, to align with the front building line of the heritage item;

3. Increasing the rear setback to Abbotford Lane, by removing protruding balconies and replacing these with windows and/or Juliette balconies;

4. Conversion of the co-living apartment adjacent to the communal open space on level 4, to become a communal living area;

5. Revised lift core location to assist compressing the building footprint;

6. Relocation of the first stair and OSD tank within the eastern setback, with increased landscaping along the eastern setback; and

7. Fencing changes in the south-western corner to provide greater communal open space;

8. Additional drawing DA304 to demonstrate floor to ceiling heights; and

9. Additional details in solar access diagrams relating to properties across the road to the south on Abbotford Street

5. Under s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. 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.

6. The signed agreement is supported by a jurisdictional statement that sets out the matters 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, including the Class 1 Application and its attachments, the bundle of documents provided by council (council bundle), the documents provided in Exhibit RK-01 (Exhibit RK-01), 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.

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, as set out below.

8. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions. Sixteen submissions were received. As the parties have reached agreement, the parties have considered the concerns raised in the submissions and not the Court. Council advises that the submissions have been considered and are satisfactorily addressed in the DA and conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021 (“Resilience and Hazards SEPP”)

9. Pursuant to s 4.6(1), a consent authority must be satisfied that appropriate consideration has been given as to whether the site is contaminated, the suitability of the site for the proposed development and whether satisfactory measures have been put into place to remediate the land should this be required.

10. The site has historically been used for residential purposes, with no known land uses or activities that suggest potential contamination (page 13 of Statement of Environmental Effects (SEE), tab 3 of Exhibit RK-01). The parties are satisfied and I accept that the requirements of s 4.6 are met.

State Environmental Planning Policy (Housing) 2021 (“Housing SEPP”)

11. The DA is subject to Ch 3, Pt 3 of the Housing SEPP.

12. Section 68 identifies the development standards which, if complied with, prevent the consent authority from requiring more onerous standards. Section 69 identifies standards which must be complied with.

13. Compliance of the DA with these standards is set out at pages 20-30 of the SEE (tab 3, Exhibit RK-01). There are three standards with which the DA is not compliant: communal living room (s 68(2)(c)); communal open-space (s 68(2)(d); landscaping (s 68(2)(f)). Pursuant to cl 4.6 of Randwick Local Environmental Plan 2012 (RLEP), written requests to vary these standards prepared by LK Planning dated June 2025 are provided with the DA. The parties are satisfied of the merits of the written requests, which explain that the exceedances are due in significant part to the DA responding to the heritage item on the site. I accept that the written requests satisfactorily address the mandatory provisions of cl 4.6 of RLEP and the Housing SEPP.

14. The parties advise and I am satisfied that the remaining identified preconditions to the grant of consent in the Housing SEPP are met.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP)

15. Pursuant to s 2.48, council gave written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks. Ausgrid confirmed that it does not object to the proposed development subject to compliance with the relevant Ausgrid Network Standards and SafeWork NSW Codes of Practice (council bundle, tab 9).

16. Pursuant to s 2.122, council gave written notice to Transport for NSW of the DA which is traffic generating development under that section. Transport for NSW confirmed that it raises no objection as the proposed development is not expected to have a significant impact on the classified road network (council bundle, tab 8).

17. I am satisfied that the requirements of the Infrastructure SEPP are met.

Randwick Local Environmental Plan 2012 (“RLEP”)

18. The site is located within Zone R3 Medium Density Residential pursuant to RLEP. The parties agree and I accept that the proposed development is permissible with consent and consistent with the relevant zone objectives.

19. Demolition works are permissible with consent under cl 2.7.

20. The site is subject to a maximum building height control of 23 m pursuant to cl 4.3 of RLEP. The DA has a maximum height of 29.18 m, exceeding the development standard. The DA is supported by a cl 4.6 variation request prepared by LK Planning dated 12 June 2025. Having read the written request, I am satisfied that the requirements of cl 4.6 of RLEP are met for the following reasons:

1. The height breach is minor, not visible from the street, and has no view loss, overshadowing, or privacy impacts.

2. The variation facilitates built form modulation and retention of a heritage item, resulting in a sympathetic height transition from 1 to 9 storeys.

3. The 9-storey element is justified site-specifically, aligning with the scale of potential compliant developments under the Housing SEPP.

4. The DA delivers diverse housing in a well-connected area and generally complies with development controls despite utilising bonus floor space. It contributes positively to the evolving higher-density character of the precinct.

21. The town planning experts in the combined town planning, urban design and heritage Joint Expert Report filed on 12 June 2025 (combined JER) agree that compliance with the development standard is unreasonable or unnecessary in this case.

22. Therefore, for the reasons stated in the written request the contravention of the height standard is upheld.

23. The site is subject to a floor space ratio (FSR) control of 2:1. The DA benefits from an additional 0.2:1 FSR under s 68(2) of the Housing SEPP, allowing a maximum floor space ratio of 2.1:1. The DA proposes a FSR of 2.19:1 which is compliant with this control.

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

25. Clause 5.10 applies because the site includes an identified local heritage item, being 'Federation semi-detached cottages' (Item No. I489), and is in the vicinity of other local heritage items located to the east of the site. The DA is accompanied by a Heritage Statement from John Oultram Heritage and Design which confirms that the DA allows for the conservation of the heritage items with an appropriate adaptive reuse.

26. The heritage experts in the combined JER agree that the extent of retention of the heritage item, which includes the side entries as far back as the fireplace and chimneys, enables a more generous appreciation of the item along the laneways and its internal and external significant fabric and layout and that the heritage contention is resolved.

27. The parties agree and I am satisfied that the requirements of cl 5.10 are met.

28. I have considered the matters at cl 6.2, including the Geotechnical Assessment prepared by AssetGeoEnviro dated 22 April 2025 (tab 13, Exhibit RK-01) which includes an outline of appropriate measures to avoid, minimise or mitigate the impacts of the development. The parties agree and I am satisfied that the DA meets the requirements of cl 6.2.

29. Clause 6.4 (stormwater management) specifies matters of which the consent authority must be satisfied. Based on the Stormwater Management Plans prepared by ITM Design Pty Ltd (Tab 19, Exhibit RK-01), I am satisfied of the matters in cl 6.4.

30. Pursuant to cl 6.8, the application was referred to Sydney Airport Corporation as a controlled activity under s 183 of the Airports Act 1996 (Cth). The site is subject to a height limit of 45.72m above existing ground level. Sydney Airport Corporation advised that it does not object to the DA being constructed to the proposed height of 54.5m (tab 7, council bundle).

31. Clause 6.10 requires a consent authority to be satisfied that essential services are available or that adequate arrangements have been made to make them available. The site is currently serviced by water, electricity, sewage disposal and stormwater drainage as well as direct vehicular access. Clause 6.10 is satisfied.

32. Clause 6.11 sets out urban design matters that the consent authority is required to consider before granted development consent. The SEE addresses each of the matters listed in cl 6.11. I am satisfied that the proposal achieves design excellence.

33. The agreed conditions of consent include a condition requiring an affordable housing contribution (condition 15). This condition is made pursuant to and meets the requirements of cl 6.27.

Other considerations

34. 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.

35. The parties have considered the likely impacts of the DA and the suitability of the site for the DA and agree that the proposal, as amended, is acceptable.

36. 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

37. 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.

38. 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.

39. 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:

40. The Court orders:

1. The appeal is upheld.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed within 28 days of the date of these Orders.

3. Development Application No. DA/530/2024   for partial demolition, alterations and adaptive re-use of existing buildings at No. 11-13 Abbotford Street, demolition of existing building at No. 9 Abbotford Street, and the construction of a 9-storey co-living development comprising 120 co-living rooms, two (2) basement levels, communal areas and open space, spread across the three (3) properties at 9, 11 and 13 Abbotford Street Kensington, legally known as SP 12920; Lot 2 in DP 786825; and Lot 1 in DP 786825 is determined by a grant of consent subject to conditions contained in Annexure A.

……………………….

A Thorpe

Acting Commissioner of the Court

(Annexure A)(601 KB, pdf)

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Decision last updated: 18 July 2025