Llanfoyst Holdings Pty Ltd v Randwick City Council

[2019] NSWLEC 1289

Land and Environment Court

New South Wales

Medium Neutral Citation:	Llanfoyst Holdings Pty Ltd v Randwick City Council [2019] NSWLEC 1289
Hearing dates:	Conciliation conference on 7 June 2019
Date of orders:	25 June 2019
Decision date:	25 June 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [7] below
Catchwords:	APPEAL – development application – alterations and additions to an approved residential flat building – cl 4.6 requests – conciliation conference – agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 - Remediation of Land State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development
Category:	Principal judgment
Parties:	Llanfoyst Holdings Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) A Bowen, Eakin McCaffery Cox (Respondent)
File Number(s):	2018/262782
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Llanfoyst Holdings Pty Ltd concerning a development application (DA/283/2017) seeking alterations and additions to an approved four storey residential flat building that is currently under construction at 5 Llanfoyst Street, Randwick. The development application seeks a further dwelling at ground level, the addition of a bedroom to each approved dwelling, and reconfiguration of basement level and associated works. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 7 June 2019. I presided over the conciliation conference.

3. At the conciliation conference, 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 was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I was satisfied that the decision to grant development consent to the amended application 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 LEC Act). I formed this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

• The development works are for the purpose of a residential flat building, which is a permissible use in the R3 Medium Density Residential zone pursuant to the Randwick Local Environmental Plan 2012 (“RLEP 2012”).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The extent of the height breach is confined to the central section of the building, where the access core is located and where the topography of the site steps down. The height of the proposal at the frontage and at the rear is compliant with the height development standard, which is 9.5m. I am satisfied that the written request, lodged pursuant to cl 4.6 of the RLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the non-compliance is a result of the fall in topography towards Llanfoyst Street and the increased setback to the rear. The increased setback to the rear, which ensures a sympathetic interface with the adjacent heritage building, has shifted the rear portion of the building containing the access core toward the centre, and therefore caused a breach in the height development standard at the point where the topography falls significantly. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance with the standard, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• I am satisfied that consent should be granted notwithstanding the contravention of the floor space ration (“FSR”) development standard. The development standard establishes a maximum FSR of 0.75:1, pursuant to cl 4.4 of the RLEP 2012. The proposed development has a FSR of 0.94:1, which represents a breach of the maximum FSR by 25%, with additional floor space of 135m2. I am satisfied that the written request, lodged pursuant to cl 4.6 of the RLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach by demonstrating that the majority of the additional floor space results from an additional unit at the ground level in an area which was required to be excavated as a result of engineer advice received after the grant of consent. Specifically, the area was originally in the form of a plant room and an unexcavated area above the excavated basement. During the course of excavation of the development site, engineering advice was received that the area would need to be excavated in full to allow the safe and orderly excavation of the site. This was particularly important due to the proximity of the state heritage listed item adjacent to the site. The proposed additional unit is a practical response to that change on the site. Further, the written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the non-compliance. Further, I am satisfied that, for the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the FSR development standard.

• The development is required to comply with the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development under the provisions of the Environmental Planning and Assessment Regulation 2000 (“the Regulations”), and the applicant’s architect has prepared a Design Verification Statement which meets the requirements under cl 50(1AB) and 143A of the Regulations.

• The development is required to comply with the provisions of State Environmental Planning Policy No 55 - Remediation of Land, and in particular cl 7(1), which requires consideration of any contamination and associated required remediation. The site has been used for residential purposes and does not require any remediation.

• The development is required to comply with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. An updated BASIX has been provided in accordance with the requirements of the Conditions in Annexure A.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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 Court orders that:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure 'A'.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act"), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum as agreed or assessed.

3. The Applicant's written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 ("RLEP 2012") seeking to justify the breach of the maximum floor space ratio development standard pursuant to clause 4.4 of RLEP2012 dated June 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of RLEP 2012. Consequently, the Applicant's written request is well founded and is upheld.

4. The Applicant's written request pursuant to clause 4.6 RLEP 2012 seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of RLEP 2012 dated June 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of RLEP2012. Consequently, the Applicant's written request is well founded and is upheld.

5. The appeal in respect of the property known as 5 Llanfoyst Street, Randwick is upheld.

6. Development Application DA/420/2018 to amend the development approved by Development Consent No. DA/283/2017 by addition of a further dwelling at ground level, addition of a study to each approved dwelling, reconfiguration of basement level including amended car parking configuration and associated works at 5 Llanfoyst Street, Randwick is approved subject to the conditions as set out in Annexure "A".

……………………….

J Gray

Commissioner of the Court

Annexure A (619 KB)

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Decision last updated: 25 June 2019