Ji Family Holdings Pty Ltd trading as Ji Family Trust v Randwick City Council

[2021] NSWLEC 1731

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ji Family Holdings Pty Ltd trading as Ji Family Trust v Randwick City Council [2021] NSWLEC 1731

Hearing dates:

Conciliation conference on 26 November 2021

Date of orders:

1 December 2021

Decision date:

01 December 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to development application DA/108/2021 for the demolition of existing structures and construction of a boarding house comprising 11 boarding rooms, communal areas, semi-basement parking, landscaping and associated works at 21-23 Wills Street, Kingsford, subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION: boarding house development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 6.2, 6.4

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 4, 27, 29, 30, 30A

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

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

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
N Eastman (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/115164

Publication restriction:

No

Judgment

1. COMMISSIONER: This class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Randwick City Council (the Respondent) of Development Application No 108/2021 for the demolition of the existing structures and construction of a three storey boarding house containing 12 single rooms with subterranean level car parking containing 3 car parking spaces, 3 motorcycle spaces and 7 bicycle spaces and associated landscaping at 21-23 Willis Street, Kingsford (the site).

2. The matter was initially listed before me for hearing on 26 and 29 November 2021. However, prior to the hearing, the Applicant amended the development application by Notice of Motion with the agreement of the Respondent, as the relevant consent authority, in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

3. On 26 November 2021, the Applicant further amended the Application with the agreement of the Respondent, and on that basis the parties advised the Court that the parties had reached in-principle agreement as to the terms of an agreement that would be acceptable to the parties.

4. Accordingly, the matter was re-allocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act), and the conciliation conference was held on 26 November 2021, at which I presided.

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. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 26 November 2021.

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 subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent 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. 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 [20].

8. The site is located within the R2 Low Density Residential zone in accordance with the Randwick Local Environmental Plan 2012 (RLEP), in which boarding house development is permitted with consent, where consistent with the following objectives of development in the R2 zone:

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

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  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.

•  To encourage housing affordability.

•  To enable small-scale business uses in existing commercial buildings.

9. The proposed development complies with the height of building development standard at cl 4.3 of the RLEP, and with the floor space ratio applicable to the site in accordance with cl 4.4 of the RLEP.

10. On the basis of the Geotechnical Desktop Study prepared by Aargus dated 21 October 2021, the Stormwater Management Plans prepared by NY Civil Engineering (Issue A), and the agreed conditions of consent, I am satisfied that the proposed earthworks and excavation will not have a detrimental impact on the soil stability of the amenity of the neighbouring uses, and I consider those matters at cl 6.2(3) of the RLEP to be appropriately addressed.

11. Relatedly, and after considering the deep soil calculations and retaining wall details contained in the amended landscape plans, I am also satisfied that the impacts of urban stormwater are minimised as required by cl 6.4(3) of the RLEP.

12. As the proposal is for boarding house development, the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) applies.

13. The site is located at a distance of 450m walking distance from the nearest bus stop and so is not within an accessible area as defined by cl 4 of the Affordable Housing SEPP.

14. Clause 27 (2) of the Affordable Housing SEPP requires land within R2 Zone to be in an accessible area in order for cll 29, 30 and 30A to apply to the proposed development. As the site is not within an accessible area, the development standards in cll 29, 30 and 30A do not apply.

15. I accept the conclusions at Section 15 of the Detailed Site Investigation (DSI) prepared by Aargus dated 23 November 2021, that the site is suitable for the proposed development subject in accordance with cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land, and I note the terms of Condition 18 of the agreed conditions of consent requiring remediation and validation of the site in accordance with the DSI.

16. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No 1164736M_02 dated 23 November 2021), prepared by Aspire Sustainability Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

17. 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.

18. 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.

Orders

19. The Court notes that:

1. Randwick City Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA/108/2021 to rely upon the documents listed below:

• BASIX Certificate no. 1164736M_02 prepared by Aspire Sustainability Consulting dated 23 November 2021;

• Section J DTS Assessment prepared by Aspire Sustainability Consulting dated 22 November 2021;

• Detailed Site Investigation Report prepared by Aargus dated 23 November 2021

• Amended landscape plans prepared by Conzept Landscape Architects dated November 2021;

• Amended plan of management prepared by Planning Ingenuity dated November 2021

2. Randwick City Council has lodged the documents listed in order (1) on the NSW planning portal on 26 November 2021

3. The applicant has subsequently filed the documents listed in order (1) with the Court on 26 November 2021.

20. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application DA/108/2021 for the demolition of existing structures and construction of a boarding house comprising 11 boarding rooms, communal areas, semi-basement parking, landscaping and associated works at 21-23 Wills Street, Kingsford, subject to conditions contained in Annexure ‘A’.

……………………

T Horton

Commissioner of the Court

(Annexure A) (360883, pdf)

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Decision last updated: 01 December 2021