Ji Family Holdings Pty Ltd Atf Ji Family Trust v Randwick City Council

[2025] NSWLEC 1065

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ji Family Holdings Pty Ltd ATF Ji Family Trust v Randwick City Council [2025] NSWLEC 1065

Hearing dates:

Conciliation conference on 9 December 2024

Date of orders:

07 February 2025

Decision date:

07 February 2025

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders:

(1)   The Applicant's cl 4.6 request, prepared by Planning Ingenuity dated 17 April 2024, to vary the minimum lot size development standard in cl 4.31 of Randwick Local Environmental Plan 2021, is upheld.

(2)   The appeal is upheld.

(3)   Development Application DA/321/2024 for a two-lot subdivision of Lots 1 and 2 in DP 305182 on land known as 21-23 Willis Street, Kingsford and the demolition of existing structures is approved subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – subdivision – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Randwick Local Environmental Plan 2012 cll 2.6, 2.7, 4.1, 4.6, 6.4, 6.10

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

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Ji Family Holdings Pty Ltd atf Family Trust (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Hannam (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/250802

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 refusal of development application DA/321/2024 (DA) by Randwick City Council (Council).

2. Ji Family Holdings Pty Ltd (Ji Family Holdings) seeks consent for the subdivision of land at 21-23 Willis Street, Kingsford, legally described as Lots 1 and 2 in DP 305182 (site). Lots 1 and 2 currently run parallel to Willis Street, such that Lot 2 is isolated behind Lot 1 and has no street frontage. The proposed subdivision would effectively change the orientation of the lots so that both run perpendicular to Willis Street, and both would have street frontages. The DA also seeks consent for the demolition of the house which currently occupies the site, in a central location which straddles both of the existing lots and both of the proposed lots.

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 9 December 2024.

4. Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the Court 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.

5. 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 is supported by a jurisdictional statement that sets out the matters that 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, the Class 1 Application and its attachments, 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.

6. The Council, as consent authority, consented to the amendment of the DA pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 to include demolition of the existing structures at 21-33 Willis Street, Kingsford. The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.

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, for the following reasons:

State Environmental Planning Policy (Resilience and Hazards) 2021

8. Consideration has been given as to whether the site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The parties agree that the site has a long history of residential use and contamination is unlikely. The requirements of s 4.6 are met.

Randwick Local Environmental Plan 2012

9. The site is located within Zone R2 Low Density Residential under Randwick Local Environmental Plan 2012 (RLEP). The parties agree and I accept that the DA is consistent with the aims of RLEP and with the objectives of the R2 zone, including:

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

…

• 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.

…

10. Subdivision and demolition are permissible with consent under cll 2.6 and 2.7 of RLEP.

11. The proposal does not comply with the minimum lot size applying to the land under cl 4.1 of RLEP. This is 275m² as identified on the Lot Size Map. The DA proposes the creation of two lots, each with an area of 264.1m². This is 10.9m² less than the minimum and represents a non-compliance of 3.96%.

12. Notwithstanding I am satisfied that consent should be granted because the proposed non-compliance is minor and does not give rise to any significant adverse impacts. I consider that the proposal improves on the existing subdivision pattern by providing an alignment which is more logical, more consistent with the area, and includes street frontages to all lots. Having regard to the circumstances of the case I am satisfied, based on the written request prepared by Planning Ingenuity (17 April 2024) lodged pursuant to cl 4.6 of RLEP, that:

• sufficient environmental planning grounds have been established that justify the breach in the minimum lot size development standard by demonstrating that the proposed non-compliance is minor and improves on the current subdivision pattern,

• compliance with the height of building development standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the development standard notwithstanding the non-compliance and will not result in adverse impacts, and

• the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

13. The parties have considered the matters set out in cl 6.4(3). Based on their advice, I am satisfied the DA meets the relevant requirements of this section. I note that condition 17 of the proposed conditions of consent requires a restriction as to user and positive covenant to be placed on the title of one of the proposed lots in conjunction with the registration of the plan of subdivision, which shall indicate that stormwater detention is required on that lot in conjunction with any development approval that is issued.

14. The site is currently serviced by water, electricity, sewage disposal and stormwater drainage as well as direct vehicular access, as required by cl 6.10. The provision of utilities is addressed in conditions 12, 15 and 17. With regard to cl 6.10(e), I note that one of the main drivers of the DA is to provide both subdivided lots with street access.

Other considerations

15. The Applicant is the owner of the site.

16. The parties advise that all required notification and referral have been undertaken. No submissions were received during the exhibition period.

17. 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

18. 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.

19. 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.

20. 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:

21. The Court orders:

1. The Applicant's cl 4.6 request, prepared by Planning Ingenuity dated 17 April 2024, to vary the minimum lot size development standard in cl 4.1 of Randwick Local Environmental Plan 2012, is upheld.

2. The appeal is upheld.

3. Development Application DA/321/2024 for a two-lot subdivision of Lots 1 and 2 in DP 305182 on land known as 21-23 Willis Street, Kingsford and the demolition of existing structures is approved subject to the conditions of consent in Annexure A.

A Thorpe

Acting Commissioner of the Court

Annexure A

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Decision last updated: 07 February 2025