Leroma Pty Ltd v Randwick City Council

[2020] NSWLEC 1179

Land and Environment Court

New South Wales

Medium Neutral Citation:	Leroma Pty Ltd v Randwick City Council [2020] NSWLEC 1179
Hearing dates:	Conciliation conference on 7 April 2020
Date of orders:	16 April 2020
Decision date:	16 April 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	Refer to orders at [7]
Catchwords:	DEVELOPMENT APPLICATION – Affordable Infill housing – amended plans - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy 55— Remediation of Land State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Texts Cited:	Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development (March, 2004)
Category:	Principal judgment
Parties:	Leroma Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: J Hones (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Hones Lawyers Pty Ltd (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/45694
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by the Applicant against the refusal of its development application DA/959/2018 by Randwick City Council. The development application as amended seeks consent for demolition of the existing structures, construction of a 4 storey residential flat building comprising 13 dwelling, including an affordable housing component, car parking for 13 cars, motorcycle and bicycle parking, landscaping and associated works. The development is proposed at 300 Clovelly Road, Clovelly.

2. In accordance with the Court’s usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 18 October 2019. By consent of the parties a further conciliation conference was held on 7 April 2020. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application.

3. Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential and/or retail purposes. With regard to the consideration required at clause 7 of State Environmental Planning Policy 55— Remediation of Land, I accept that the likelihood of contamination is low.

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 983823M_02 in compliance with the instrument.

3. Pursuant with the provisions of the Randwick Local Environmental Plan 2012 (WLEP) the site is zoned R3 Medium Density Development. The proposed development, residential flat building, is permissible with consent.

4. The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009(SEPP ARH) as in-fill affordable housing. The division applies to the site as the development sought is permissible under WLEP and does not contain a heritage item (cl 10(1)(a) and (b) of SEPP ARH).

5. The parties accept that the subject site meets the definition of ‘accessible area’ on the basis of the site being within 400m of a bus stop with regular services as required by cl 4(1)(a) of SEPP ARH.

6. The consent conditions at Condition 2A require that a minimum of 8 units are to be provided as affordable housing for a minimum of 10 years in accordance with SEPP ARH.

7. I am satisfied that the application complies with the standards listed at cl 14 of SEPP ARH.

8. As required by cl 15(1) of SEPP ARH, I have taken into consideration the provisions of the Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development (March, 2004), to the extent that those provisions are consistent with SEPP ARH.

9. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area.

10. The application is accompanied by a design verification statement as required by cl 50 of the Environmental Planning and Assessment Regulation 2000.

11. The development application was notified in accordance with cl 4.18 of the EPA Act, and Council’s notification policy. Submissions were received by the Council. I am satisfied that these submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. Leave is granted to the Applicant to rely on the following architectural plans prepared by Archispectrum:

1. Drawing No. DA02 – Ground Floor Plans, Issue F, dated 22 November 2019;

2. Drawing No. DA03 – First & Second Floor Plans, Issue F, dated 22 November 2019;

3. Drawing No. DA04 – Third & Fourth Floor Plans, Issue F, dated 22 November 2019;

4. Drawing No. DA05 – Site & Roof Plan, Issue F, dated 22 November 2019;

5. Drawing No. DA06 – North, South & West Elevations, Issue F, dated 22 November 2019;

6. Drawing No. DA07 – East Elevation & Section, Issue F, dated 22 November 2019;

7. Drawing No. DA10 – Area Calculations, Issue F, dated 22 November 2019;

8. Drawing No. DA11 – Landscape Calculations, Issue F, dated 22 November 2019;

9. Drawing No. DA13 – Affordable Housing Allocation, Issue F, dated 22 November 2019; and

10. Drawing No. DA20 – Sections, Issue F, dated 22 November 2019.

2. Leave is granted to the Applicant to rely on the Landscape plans, Revision B, prepared by Zenith Landscape Designs dated 14 November 2019.

3. The Applicant is to pay the Respondent’s s 8.15(3) costs “thrown away” in the sum of $16,000.00 within 30 days.

4. The appeal is upheld.

5. Development Consent be granted to DA-959/2018 in respect of the property at 300 Clovelly Road, Clovelly, being Lot 21 in Section 2 of DP5790, for the demolition of existing structures, construction of a 4 storey residential flat building comprising of 13 dwellings, including an Affordable Housing component, car parking for 13 cars, motorcycle and bicycle parking, landscaping and associated works subject to the conditions in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (189 KB)

Plans (4.67 MB)

Landscape Plans (6.98 MB)

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Decision last updated: 16 April 2020