Ji Property No. 1 Pty Ltd v Randwick City Council

Case •

[2021] NSWLEC 1623

•

20 October 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Ji Property No. 1 Pty Ltd v Randwick City Council [2021] NSWLEC 1623
Hearing dates: Conciliation conference on 25 August, 23 and 30 September 2021
Date of orders: 20 October 2021
Decision date: 20 October 2021
Jurisdiction:Class 1
Before: Bindon AC
Decision:

Refer to the orders below at [17]

Catchwords:

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

Legislation Cited:

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

Land and Environment Court Act 1979 s 34

Randwick Local Environmental Plan 2012 cll 2.7, 4.3, 4.4, 6.2, 6.4

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 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 (June 2021)

Category:Principal judgment
Parties: Ji Property No. 1 Pty Ltd (Applicant)
Randwick City Council (Respondent)
Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2021/113317
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Randwick City Council (Council) of Development Application No 102/2021 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

  2. The DA relates to a 674.4m2 parcel of land identified as Lot A in DP 316766 at 5-7 Forsyth Street, Kingsford (the site). The DA as submitted to the Council on 4 March 2021 sought consent for demolition of the existing structures and the construction of a three storey boarding house containing twenty-four (24) rooms, including one manager’s room, with a basement level containing eight car spaces, 5 motorcycle spaces and 15 bicycles spaces, and associated landscaping. The DA was notified over the period 11 to 25 March 2021, resulting in the receipt of two objections.

  3. On 23 April 2021 the Applicant lodged this Class 1 Appeal with the Court. On 18 June 2021 the Council filed its Statement of Facts and Contentions (SOFC). The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, held on 25 August, 23 and 30 September 2021. Due to the Court’s COVID-19 Pandemic Arrangements Policy (24 June 2021) (COVID-19 Policy) restrictions in place at the time there was no site view undertaken as part of the proceedings. There were no oral submissions from objectors.

  4. Amendments to the architectural plans, prepared by BKA Architecture Revision E dated 31 August 2021 (the final plans) were then made to address the matters raised in the SOFC, concerns raised by Council during the s34 conference and in the public submissions. The final plans and other documents that comprised the amended application, including an amended BASIX Certificate, dated 1 September 2021 and an Amended Plan of Management, dated September 2021, were lodged on the NSW Planning Portal on 29 September 2021. The parties advised the Court that they had reached an agreement and provided to the Court a copy of that agreement along with draft conditions on 23 February 2021. A s34 agreement, signed and dated 1 October 2021, including conditions of consent at Annexure A, was filed with the Court on 1 October 2021.

  5. The main changes between the original plans filed with the Class 1 Application and the final plans the subject of the s34 agreement are to the rear building, as follows:

  1. It has been relocated approximately 1.2m in an easterly direction reducing the rear setback to Willis Lane and increasing the separation between the front and rear buildings.

  2. The lift and fire stairs have been relocated, affecting the floor layouts on all levels.

  3. On each of the first and second floors the two single rooms facing Willis Lane have been replaced with one double room.

  4. On the third floor the Communal Room has been consolidated and enlarged (from 42.5m2 to 50.5m2).

  1. The total number of boarding rooms (including Manager’s room) has been reduced from 24 to 22, the building height has been reduced slightly to now comply with the 9.5m height limit the landscaped area along the southern side boundary has increased with the provision of additional planters and the number of parking spaces generated has reduced from 12 to 11, although the numbers provided on-site has remained at eight, including a car share space.

  2. 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

Satisfaction of jurisdiction

  1. The relevant jurisdictional matters have been identified by the parties. In relation to the Randwick Local Environmental Plan 2012 (RLEP) the relevant provisions are:

  1. The development is for the purposes of the boarding house, which is permissible with consent in the R3 Medium Density Residential Zone (R3 Zone),and is consistent with the objectives of the R3 Zone. Demolition is permissible under cl 2.7 of the RLEP.

  2. The maximum height of the development, as amended, is 9.5m, and therefore complies with the 9.5m height of buildings development standard at cl 4.3 of the RLEP.

  3. The development, as amended, has a FSR of 0.92:1 which does not contravene the FSR development standard at cl 4.4 of the RLEP of 0.75:1 plus the 0.5:1 bonus provided for by cl 29(1)(c) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

  4. Clauses 6.2. Earthworks and 6.4 Stormwater Management apply. The matters for consideration set out in these clauses have been addressed in the application. The proposed excavation to accommodate the basement is generally limited to below the building footprint and a geotechnical report is provided as part of the DA. Pursuant to cl 6.2 amended stormwater plans were submitted as part of the amended DA.

  1. SEPP ARH applies to the development of boarding houses located in the R3 Zone. Clauses 29 and 30 set out a number of development standards that apply to the DA.

  2. Clause 29 refers to the standards that cannot be used to refuse consent. The development satisfies those standards with the exception of the parking provision rate of 0.5 car spaces for each boarding room. The development provides eight parking spaces including one car share space. The parties agree the proposed parking provision is acceptable.

  3. Clause 30 of the SEPP ARH contains standards for which the consent authority must be satisfied. Council is satisfied the development generally complies with the relevant standards, and specifically:

  1. One communal living room and one communal outdoor spaces are provided, and therefore cl 30(1)(a) is satisfied.

  2. No boarding room has a GFA of more than 25m2 - excluding the areas identified by cl 30(1)(b).

  3. No boarding room has been designed to accommodate more than 2 lodgers, and the Amended Plan of Management limits the number of rooms and occupants to 18 single rooms, three double rooms and one manager’s room. Clause 30(1)(c) is therefore satisfied.

  4. Bathroom and kitchen facilities are provided to each room and therefore cl 30(1)(d) is satisfied.

  5. A manager’s room (Room 1.09) is provided, and therefore cl 30(1)(e) is satisfied.

  6. At least one parking space for a bicycle and one for a motorcycle are provided for every 5 boarding rooms. The development provides 13 bicycle spaces and 4 motorcycle spaces. Therefore cl 30(1)(h) is satisfied.

  1. The parties are satisfied the development is also compatible with the character of the local area, as required by cl 30A of the SEPP ARH.

  2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular subcll 7(1) and (2), apply to the land and require consideration of any contamination and associated remediation. The parties advise that based on an investigation of application history, perusal of historic aerial imagery and a site inspection, it is unlikely the site has previously been used for any potentially contaminating land uses, and is therefore unlikely to be contaminated, and the Court can therefore be satisfied that cl 7 has been addressed.

  3. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), an amended BASIX Certificate number 1169114M _02 dated 1 September 2021 has been provided demonstrating compliance with the BASIX SEPP, and is referenced in the conditions of consent.

Disposal of proceedings in accordance with the parties’ decision

  1. 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’ agreement.

  2. The Court notes:

  1. That 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/102/2021.

  2. That Randwick City Council has uploaded the amended application on the NSW planning portal on 29 September 2021

  3. That the applicant has subsequently filed the amended application with the Court on 29 September 2021.

  1. The Court orders:

  1. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

  2. The appeal is upheld.

  3. Development consent is granted to development application DA/102/2021 for the demolition of existing structures and construction of a 3-storey boarding house comprising 22 boarding rooms, rooftop terrace, basement car parking, landscaping and associated works at 5 – 7 Forsyth Street, Kingsford, subject to the conditions of consent in Annexure A.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (373220, pdf)

Ground Floor Plan (351544, pdf)

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Decision last updated: 20 October 2021

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