Kingsford Parade Pty Ltd v Randwick City Council

[2024] NSWLEC 1572

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kingsford Parade Pty Ltd v Randwick City Council [2024] NSWLEC 1572

Hearing dates:

Conciliation conference on 11 and 21 June 2024; 5 and 19 July 2024; 20 August 2024; s34 agreement submitted on 29 August 2024

Date of orders:

17 September 2024

Decision date:

17 September 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent's costs thrown away as a result of the amended application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $12,500 payable within 28 days of the orders being made.

(2) The applicant’s written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (LEP), seeking to vary the development standard height as set out at clause 4.3 of the LEP, is upheld.

(3) The appeal is upheld.

(4) Development Application No. DA/731/2023 for the demolition of the existing structures and the construction of a new part 4, part 9 storey co-living housing development with ground floor retail and a single basement level containing parking, shared parking, bicycle and motorbike parking and ancillary services at 311-315 Anzac Parade, Kensington is determined by the grant of consent subject to the conditions of consent in Annexure ‘A’.

Catchwords:

APPEAL – development application – construction of a co-living housing development with ground floor retail and a single basement level for parking – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.42, 4.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 3, 27, 38

Randwick Local Environmental Plan 2012, cll 2.7, 4.1, 4.3, 4.4, 4.6, 5.10, 5.21, 6.2, 6.4, 6.10, 6.11, 6.17, 6.20, 6.25-6.27

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (repealed)

State Environmental Planning Policy (Housing) 2021, ss 7, 67, 68, 69, 70

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.99, 2.122

Texts Cited:

Kensington and Kingsford Town Centres – Affordable Housing Plan 2019

Kensington and Kingsford Town Centre Community Infrastructure Contributions Plan 2019

Kensington and Kingsford Town Centres Development Control Plan 2020

Randwick Community Engagement Strategy 2022

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Kingsford Parade Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/449699

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against the refusal by Randwick City Council of development application no. DA 731/2023 for the demolition of the existing structures and the construction of a new part 4, part 9 storey co-living housing development with ground floor retail and a single basement level containing parking, shared parking, bicycle and motorbike parking and ancillary services, at 311-315 Anzac Parade, Kingsford (site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act1979 (LEC Act) between the parties, which was first held on 11 June 2024 and reconvened over an extended period. I presided over the conciliation conferences.

3. During that process, the Council approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the applicant amending the DA (amended DA) to address the contentions raised in the Council’s Statement of Facts and Contentions (SOFAC). The documents comprising the amended DA are set out in Annexure A and have been filed with the Court on 6 September 2024.

4. The amended plans now provide greater internal amenity, communal spaces, and an updated design for each room. The amended development also now minimises the bulk of the building in respect to setbacks and offers compliant parking and waste disposal on site.

5. Having resolved the contentions raised, the parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s34 written agreement. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement.

6. Based on the evidence and the submissions of the parties in respect to my jurisdiction, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act).

7. The preconditions of relevance are addressed in a summary form below:

Randwick Local Environmental Plan 2012 (LEP)

8. The site is zoned E2 Commercial Centre under the LEP and development for the purposes of co-living housing development is permissible in the zone as well as shop top housing.

Clause 2.7 - Demolition

9. Demolition is permissible with development consent and the provisions of cl 2.7 of the LEP are satisfied.

Clause 4.1 - Minimum lot size

10. There is no minimum lot size requirement in cl 4.1 of the LEP and the parties agree and I accept that there is no need to give this matter any further consideration.

Clause 4.3 - Height

11. The DA as amended by the final plans seeks a non-compliance with cl 4.3 of the LEP.

12. Clause 4.3 of the LEP permits a maximum building height of 24 m. Clause 6.17(4) provides for an additional height to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. Despite the terms of cl 4.3, the consent authority may consent to development on a site that results in additional building height in accordance with subcl (4) if the development includes community infrastructure on the site.

13. As established by the LEP Alternative Height of Buildings Map associated with cl 6.17, the site is subject to a maximum building height limit of 31 m (Anzac Parade) and 19 m (Houston Lane).

14. The DA as amended by the final plans complies with the permissible height on Houston Lane but exceeds the maximum building height on Anzac Parade by 2.36 m. The exceedance is limited to the access arrangement to the roof including lift and stair.

15. The height non-compliance is supported by a written clause 4.6 submission for height prepared by The Planning Studio dated 24 June 2024 (the Height Clause 4.6 request).

16. The Height Clause 4.6 request justifies the non-compliance for a number of reasons, by reference to the objectives of the zone and cll 4.3 and 6.17, including:

• the proposed building height and bulk is of an appropriate form and scale and is compatible with surrounding development;

• the height breach minimises environmental amenity impacts to existing buildings and open space. This is required in the objectives of cl 4.3 of the LEP;

• the height breach is not perceptible from the street; and

• the height breach is not inconsistent with the desired future character of the precinct as determined by the Kensington and Kingsford Town Centres Development Control Plan 2020 (the Kensington DCP).

17. The Height Clause 4.6 request also provides a number of environmental planning grounds to support the height breach including there will be no loss of significant or iconic views; no additional privacy impacts; unacceptable traffic impacts; adverse visual impacts or additional overshadowing to residential properties.

18. The parties agree and I accept that the Height Clause 4.6 request adequately justifies why it is unreasonable and unnecessary to comply with the development standard at cll 4.3 and 6.17 of the LEP, and that there are sufficient environmental planning grounds to support the variation to the development standard.

19. The parties agree and I accept that the Height Clause 4.6 request addresses all relevant requirements in cl 4.6 of the LEP, including those provisions at cll 4.6(3) and 4.6(4) and should be upheld.

Clause 4.4 - Floor space ratio (FSR)

20. Clause 4.4 provides for a base permissible FSR of 3:1. Clause 6.17 provides for an increase in FSR by an addition 1:1.

21. The proposed development provides for an FSR of 3.57:1, which complies with the development standard.

22. The site is 1,011sqm in size and the agreed gross floor area (GFA) proposed per plan DA9003 Rev C is 3,604.94sqm.

23. The parties agree and I accept that the proposed development as amended by the final plans complies with the development standard.

Clause 5.10 – Heritage conservation

24. In respect of cl 5.10 of the LEP, the parties agree and I accept that consideration has been given to those matters in cl 5.10(4).

25. The site is not located in a heritage conservation area, is not a heritage item and is not in the vicinity of a heritage item. However, the Kensington DCP and the relevant provisions of Part 9 of the Randwick Development Control Plan 2013 (Randwick DCP) relating to heritage conservation raise issues with respect to strategic sites and requires the retention of original fabric on street frontages. Significant amendments have been made to the final plans to amend the integration of the building form on Anzac Parade with the original frontages as well as to ensure the materiality of the new building form is complementary with the existing retained building form.

26. The parties agree and I accept that the relevant objectives of cl 5.10(1) have been satisfied, and that relevant consideration as to the effect of the proposal in regard to the objectives of the Kensington DCP and the Randwick DCP have been considered.

Clause 5.21 – Flood planning

27. In respect of cl 5.21 ‘Flood planning’ of the LEP, the site is not mapped as being in the floodplain area or being affected by flooding.

Clause 6.2 - Earthworks

28. In relation to cl 6.2 ‘Earthworks’, the parties agree and I accept that those matters arising in cl 6.2(3) have been considered as part of the assessment of the final plans. A geotechnical Report prepared by Crozier dated May 2023 was submitted with the DA and concluded that:

• the excavation is not expected to intersect ground water and thus not interfere with the local hydrology of the area; and

• the excavation can be undertaken safely and all on the subject site.

29. The parties note that the DA was referred to Water NSW for its concurrence, and this was issued subject to GTAs which have been incorporated into the conditions of consent.

30. The parties agree and I accept that the requisite consideration of earthworks including the objectives of cl 6.2(1) and the matters for consideration in cl 6.2(3) have been considered.

Clause 6.4 – Stormwater management

31. In respect of cl 6.4 ‘Stormwater management’, the parties agree and I accept that those matters arising in cl 6.4 have been considered as part of the assessment of the final plans.

32. Clause 6.4(3) states that development consent must not be granted on land to which this clause applies unless the consent authority is satisfied that:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

33. The Court notes the following:

• the Stormwater Plans submitted with the DA provide details about the provision of on-site detention;

• there are adequate permeable areas to allow for on-site collection of stormwater and rainwater;

• there is a sediment control plan to deal with runoff and the protection of the environment; and

• there is the provision of a rainwater tank which will result in a positive environmental outcome.

Clause 6.10 - Essential services

34. In relation to cl 6.10 ‘Essential services’, the parties agree and I accept that those matters arising in cl 6.10 have been considered as part of the assessment of the final plans and services that are essential for the development are available.

Clause 6.11 - Design excellence

35. This clause applies to the site as there is a building that is greater than 15 m in height (cl 6.11(1)(c)).

36. Clause 6.11(3) requires that:

Development consent must not be granted to development to which this clause applies unless the consent authority is satisfied that the proposed development exhibits design excellence.

37. The amendments to the plans which resulted in the final plans have resolved all planning and urban design issues and exhibits design excellence. The Council had the benefit of an urban designer to assist in the assessment of the design excellence and that expert was satisfied with the final design.

38. Relevant consideration has been given to those matters in cl 6.11(4) and further consideration has been given to the objectives and controls for the relevant block in the Kensington DCP.

39. The parties agree and I accept that the proposed development exhibits design excellence.

Clause 6.17 - Height and Floorspace in Kensington and Kingsford Town Centre

40. Clause 6.17(2) states:

Despite clauses 4.3 and 4.4, the consent authority may consent to development on a site that results in additional building height or additional floor space, or both, in accordance with subclause (4) if the development includes community infrastructure on the site.

41. The applicant has sought for additional height and GFA and has provided an offer by way of voluntary planning agreement dated 5 July 2024 (the VPA Offer) in accordance with the provisions in Part 31 of the Kensington DCP. Part 31 of the Kensington DCP refers to the Kensington and Kingsford Town Centre Community Infrastructure Contributions Plan 2019 (the CIC).

42. The consent authority, in determining satisfaction with this clause must consider to a level of satisfaction the following matters in cl 6.17(3) including:

(a) be satisfied that the development is consistent with the objectives of this clause, and

(b) be satisfied that the community infrastructure is reasonably necessary at Kensington and Kingsford town centres, and

(c) take into account the nature of the community infrastructure and its value to the Kensington and Kingsford town centres community.

43. The VPA Offer takes into consideration Part 31 of the Kensington DCP and the CIC and presents an offer in accordance with the terms of those documents which essentially requires any GFA above the permissible height in cl 4.3 of the LEP to be attributed a value and thereon to that value to be paid as a works-in-kind contribution and/or a monetary contribution.

44. The parties agree and I accept that those matters in cl 6.17(3) have been satisfied and that the VPA Offer is consistent with the provision of the Kensington DCP and CIC and binding.

Clause 6.20 - Active streetfrontage

45. Clause 6.20(3) and (4) state:

(3) Development consent must not be granted to the erection of a building on land to which this clause applies unless the consent authority is satisfied that all premises on the ground floor of the building facing the street are to be used for the purposes of commercial premises after the erection of the building.

(4) Development consent must not be granted to a change of use of premises on the ground floor of a building on land to which this clause applies unless the new use is for the purposes of commercial premises.

46. The proposed development proposes commercial space on the ground floor presenting to Anzac Parade and is compliant.

47. The parties agree and I accept that this provision has been satisfied.

Clauses 6.25-6.27 - Affordable housing

48. This clause applies to the site as it is mapped per cl 6.27(1) of the LEP.

49. Clause 6.27(2) states:

When granting development consent to development to which this clause applies, the consent authority may impose a condition requiring an affordable housing contribution equivalent to 5% of the total floor area of the part of the building intended to be used for residential accommodation (the contribution).

50. Clause 6.27(4) states:

A monetary contribution must be calculated in accordance with the Kensington and Kingsford Town Centres – Affordable Housing Plan adopted by the Council on 10 December 2019.

51. The Affordable Housing Plan 2019 is hereinafter referred to as the “Plan”.

52. Clause 6.27(3)(a) requires a monetary contribution for co-living development.

53. Affordable housing is considered in Part 30 of the Kensington DCP and provides for a monetary figure for any contribution from August 2022 onwards to be indexed in accordance with the Plan.

54. Any offer is based on the ‘total floor area’ of the proposed development as opposed to the GFA. The “total floor area” is defined in cl 6.25.

55. The VPA Offer includes reference to plan DA9008 Rev C which calculated the total floor area which is used for the purpose of the VPA Offer.

56. The parties agree and I accept that the VPA offer complies with the provision of the LEP as well as Part 30 of the Kensington DCP and the Plan.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

Chapter 4 – Remediation of Land

57. Section 4.6(1) of the RH SEPP precludes the granting of development consent unless the consent authority has considered relevantly whether the site is contaminated or potentially contaminated land and, if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

58. Section 4.6(2) requires that the consent authority consider a report specifying the findings of a preliminary site investigation of the land concerned, if the proposed development would involve a change of use on any of the land set out in s 4.6(4).

59. The applicant provided a Preliminary Environmental Site Investigation Reported prepared by Environmental Consulting Services dated 4 June 2023 (the PSI) with the DA.

60. The applicant, in response to contentions, provided the Council within Detailed Site Investigation Report, prepared by Environmental Consulting Services dated 13 May 2024 (the DSI Report). The DSI Report confirms that the site is suitable for the proposed development subject to the implementation of recommendations outlined in the DSI Report.

61. The conditions of consent require the implementation of the recommendations.

62. The parties agree and I accept that the matters of contamination have been adequately dealt with.

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

63. The Housing SEPP applies to the site by operation of s 7 and permits the proposed development pursuant to s 67(a).

64. The proposed development complies with the non-discretionary development standards in s 68 as follows:

• FSR - does not apply but the proposed development as amended by the final plans comply with the LEP’s permissible FSR (s 68(2)(a));

• Communal living space - the final plans provide for adequate communal living area being 207.03 sqm and more than minimum dimensions (s 68(2)(c));

• Communal open space - 461.49 sqm is provided which meets the requirement (s 68(2)(d));

• Car parking - the proposed development is in an accessible area and requires 0.2 spaces per room. This equates to 18.8 spaces for 94 rooms. There is also a requirement for spaces for the retail component of the proposed development which requires between 2.8 and 3.4 spaces depending on use. In total, 23 spaces are required. The proposed development which includes multiple shared parking spaces calculated at an agreed rate of 1 space as to 4 parking spots complies with this requirement (s 68(2)(e)).

65. The proposed development complies with the development standards at s 69 as follows:

• Floor space per room - each single room is at least 12 sqm and each double room at least 16 sqm excluding kitchen, access to kitchen, bathroom and other non-bedroom space. This is shown in detailed layout plans DA2012-2019 Rev C (s 69(1)(a));

• Minimum lot size - the size of the site exceeds 800 sqm (s 69(1)(b));

• Workspace – the co-living development contains a workspace for the manager (s 69(1)(d));

• Business zone - no part of the ground floor fronting Anzac Parade includes a residential use (s 69(1)(e));

• Services - adequate kitchen, bathroom and laundry services are provided within the proposed development (s 69(1)(f));

• Two lodgers – no room is permitted more than 2 lodgers pursuant to the Plan of Management and this is a condition of consent (s 69(1)(g));

• Bicycle and motorbike parking – adequate facilities are provided for parking of bicycles and motorbikes (s 69(1)(h));

• Section 69(2)(a) does not apply to this zone;

• Separation – the separation distances internally comply so that the rooms in the front and rear building are separated by at least 12 m (s 69(2)(b));

• Solar access – at least one communal room (the northern facing room) gets solar access between 9am and 3pm on the winter solstice (s 69(2)(c)); and

• Design – the development achieves the requirements of subss (a) and (b) and exhibits design excellence (s 69(2)(f)).

66. In respect of s 70, no subdivision is sought.

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

67. Sections 2.122, 2.98(2) and 2.99 of the TI SEPP apply to the site.

68. The DA was referred to Transport for NSW (TfNSW) for concurrence and TfNSW responded providing conditions which have been incorporated into the conditions of consent.

State Environmental Planning Policy (Industry and Employment) 2021 (IE SEPP)

69. The IE SEPP no longer applies as there is no application for signage as it was deleted from the final plans.

Randwick DCP

70. The parties agree and I accept that the final plans can be approved having regard to the provisions of the Randwick DCP and s 4.15(1)(a)(iii), also noting that the provisions of a development control plan made for the purposes of s 3.42(1) are not, of themselves, statutory requirements. The final plans indicate wall height compliance which also assists in ensuring compatibility with the character of the area by reducing the bulk and scale of the development, as well as reducing the overshadowing of adjoining development.

State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP)

71. The Sustainable Buildings SEPP repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), with effect from 1 October 2023. Section 4.2(1)(a) of the Sustainable Buildings SEPP provides that it does not apply to a DA submitted but not finally determined before 1 October 2023.

72. SEPP BASIX was repealed and its provisions re-enacted in the Sustainable Buildings SEPP without a savings provision.

73. In accordance with subss 4.2(1)(a) and 4.2(1)(f) of the Sustainable Buildings SEPP, this Policy does not apply to the DA as it was submitted and not finally determined before 1 October 2023.

74. On this basis, the parties agree and I accept that the SEPP BASIX does not apply to the DA.

EPA Regulation

Section 27 – BASIX development

75. In accordance with the definition in s 3 and the Dictionary of the EPA Regulation, the DA is a BASIX development as it involves the development of a BASIX building.

76. Section 27 of the EPA Regulation provides that:

(1) A development application for BASIX development must be accompanied by—

(a) a relevant BASIX certificate for the development issued no earlier than 3 months before the day on which the development application is submitted on the NSW planning portal, and

(b) the other matters required by the BASIX certificate.

(2) If the development involves the alteration of a BASIX building that contains more than 1 dwelling, a separate BASIX certificate is required for each dwelling.

77. Pursuant to s 27 of the EPA Regulation, a Section J report prepared by E-Lab Consulting was issued on 29 August 2023. It is considered that this report is not required to be amended for the final plans.

78. The parties agree and I accept that the provision of a Section J report with the DA is sufficient to address this issue.

Community participation

79. The DA was notified in accordance with the requirements of the Randwick Community Engagement Strategy between 19 October to 16 November 2023.

80. One submission was received from 60 Willis Street, Kingsford and the issues are summarised in par 26 of the SOFC.

81. No objectors attended the s34 conference.

82. The parties agree and I accept that the DA was notified in accordance with the Community Participation Plan and that the submission have been taken into consideration.

EPA Act

83. All of the matters contained in s 4.15 of the EPA Act that are of relevance to the proposed development have been taken into consideration, and the parties agree that the proposed development (as amended by the final plans) is acceptable, subject to conditions.

84. The parties agree that the grant of development consent subject to the agreed conditions is a decision that the Court could have made in the proper exercise of its functions.

85. The proposed development did trigger the requirement for concurrence pursuant to the TI SEPP. Concurrence was granted by TfNSW.

86. Concurrence from other authorities were not needed but communications with various authorities were undertaken by the Council. The communications and results are noted at pars 24-30 of the SOFAC.

Orders

87. Accordingly, the Court orders:

1. The applicant is to pay the respondent's costs thrown away as a result of the amended application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $12,500 payable within 28 days of the orders being made.

2. The applicant’s written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (LEP), seeking to vary the development standard height as set out at clause 4.3 of the LEP, is upheld.

3. The appeal is upheld.

4. Development Application No. DA/731/2023 for the demolition of the existing structures and the construction of a new part 4, part 9 storey co-living housing development with ground floor retail and a single basement level containing parking, shared parking, bicycle and motorbike parking and ancillary services at 311-315 Anzac Parade, Kensington is determined by the grant of consent subject to the conditions of consent in Annexure ‘A’.

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (574917, pdf)

**********

Decision last updated: 17 September 2024