Mark Zhang v Randwick City Council

[2022] NSWLEC 1120

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mark Zhang v Randwick City Council [2022] NSWLEC 1120

Hearing dates:

Conciliation conference 15 February 2021

Date of orders:

11 March 2022

Decision date:

11 March 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA/625/2020 (as amended) for the demolition of existing structures and construction of a three-storey residential flat building comprising 6 apartments, basement level carparking, landscaping and associated works and landscaping at 29 Stanley Street, Randwick is determined by the granting of consent, subject to the conditions in Annexure A to these orders.

(3) The Applicant is to pay the Respondent’s costs thrown away in the amount of $4,400 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(4)The Applicant is to pay the Respondent’s costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agree in the amount of $12,500 within 28 days.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of new boarding house – amended plans – agreement between the parties – orders.

Category:

Principal judgment

Parties:

Mark Zhang (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
I Hemmings (Applicant)
M Astill (Respondent)

Solicitors:
Madison Marcus Law Firm (Applicant)
V McGrath, Randwick City Council (Respondent)

File Number(s):

2021/54299

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of Development Application No. DA/625/2020 by Randwick City Council (the Respondent). The development application, as amended, seeks consent for the demolition of existing structures, and construction of a three-storey residential flat building comprising six apartments, basement carparking for nine cars and landscaping and associated works. The development is proposed at 29 Stanley Street, Randwick (Lot 1 DP 304856).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 15 February 2022. I presided over the conciliation conference. Following the conciliation, agreement was reached between the parties. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment: pursuant to s 4.16(1) of the EPA Act.

3. 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 below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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. By reference to the development application form filed, Owner’s consent has been given to the Applicant for lodgement of the Development Application.

2. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. Based on the historical use of the site as residential, it is considered unlikely that the site will require remediation works. I accept that the site will be suitable for the proposed development.

3. An amended BASIX certificate dated 15 February 2022 has been filed to reflect the amended architectural plans in satisfaction of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. As the development application is for residential apartment development, the provisions of the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) apply. Clause 28 of SEPP 65 requires a consent authority, or the Court on appeal, to take into consideration advice from the design review panel, and the design quality of the development when evaluated in accordance with the design quality principles, and the Apartment Design Guide. I have reviewed the amended development application against these provisions, and I am satisfied that adequate regard has been given to the design quality principles at Sch 1, and the objectives specified in the Apartment Design Guide.

5. Clause 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation)requires an application for residential apartment development to be accompanied by a statement by a qualified designer, defined by cl 3 as a person registered under the Architects Act 2003, and in a form set out at cl 50(1AB) of the EPA Regulation. The statement by the qualified designer must attest to certain things set out at cl 3A of the EPA Regulation, including attestations in respect of the design quality principles, and the objectives specified in the Apartment Design Guide for the relevant design criteria. A complying design statement prepared by the architect Javad Zand (11089) accompanies the application.

6. The Randwick Local Environmental Plan 2012 (LEP 2012) applies to the site. Pursuant to LEP 2012, the site is zoned R3 Medium Density Residential. The proposed development is for the purpose of a boarding house which is a permitted use in the zone. Demolition is permissible pursuant to cl 2.7 of LEP 2012. In determining the development application, I have had regard to the objectives of the zone; cl 2.3(2) of LEP 2012.

7. The development application complies with the development standards for height and floor space ratio of LEP 2012.

8. The site is not a heritage item nor is it located in a heritage conservation area. However, the land across from the site is within the North Randwick Heritage Conservation area, and the land to the north (Emanuel School) contains a state listed heritage item. Clause 5.10 of LEP 2012 does not apply.

9. Pursuant to cl 6.1 of LEP 2012 does not apply as the subject site is not affected by acid sulfate soils.

10. The parties make an agreed submission that cl 6.4 of LEP 2012 is satisfied that the requisite stormwater management considerations have been addressed by the amended plans and documentation. I am similarly satisfied.

11. Pursuant to cl 6.10 of LEP 2012 the proposed development has available to it all essential services.

12. The application was notified in accordance with the relevant development control plan between 25 November and 18 December 2020, and I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act.

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 requires 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 notes that:

1. Randwick City Council as the relevant consent authority has agreed, under cl 55(1) of the EPA Regulation, to the applicant amending the development application DA/625/2020.

2. That the Respondent has uploaded the amended development application on the NSW planning portal.

3. That the applicant filed the amended development application with the Court on 17 February 2022.

8. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/625/2020 (as amended) for the demolition of existing structures and construction of a three-storey residential flat building comprising 6 apartments, basement level carparking, landscaping and associated works and landscaping and 29 Stanley Street, Randwick is determined by the granting of consent, subject to the conditions in Annexure A to these orders.

3. The Applicant is to pay the Respondent’s costs thrown away in the amount of $4,400 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

4. The Applicant is to pay the Respondent’s costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agree in the amount of $12,500 within 28 days.

D M Dickson

Commissioner of the Court

Annexure A (527182, pdf)

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Decision last updated: 11 March 2022