Mitrothanasis v Randwick City Council

[2022] NSWLEC 1039

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mitrothanasis v Randwick City Council [2022] NSWLEC 1039

Hearing dates:

Conciliation conference on 15 November, 8 and 21 December 2021

Date of orders:

27 January 2022

Decision date:

27 January 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

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

(2) The Applicant’s written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, to vary the height of buildings development standard contained in clause 4.3 of that plan is upheld.

(3) The appeal is upheld.

(4) Development consent is granted to Development Application No. DA/637/2020, for the demolition of existing structures and construction of a 4 unit, 3 storey residential flat building containing one studio, one 2 bedroom unit and two 3 bedroom units, basement parking for 4 cars and associated landscaping works (infill affordable housing) on the land described as Lot A DP 346056 known as 23 Bona Vista Avenue, Maroubra, subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – residential flat building – proposed development exceeds height development standard – clause 4.6 request – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15

Environmental Planning and Assessment Regulation 2000, cll 50 and 55

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4, 4.3, 4.4, 4.6, 6.1, 6.2, 6.4, 6.7, 6.10

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 16A, 14

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

State Environmental Planning Policy (Coastal Management) 2018, cl 14

State Environmental Planning Policy (Housing) 2021, cl 2

State Environmental Planning Policy No 55— Remediation of Land, cl 7

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30

Category:

Principal judgment

Parties:

Theodore Mitrothanasis (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):

21/193296

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) for a residential flat building in Maroubra.

2. The land to which the DA relates is described as Lot A DP 346056 and is known as 23 Bona Vista Ave, Maroubra (Site).

3. The DA seeks development consent to carry out development involving the demolition of the existing improvements of the Site and the construction of a four storey residential flat building over basement car parking (Proposed Development).

4. The DA was lodged with the Randwick City Council (Council) on 25 November 2020. When the DA had not been determined by the Council within the period after which a development application is taken to have been refused, on 9 July 2021 the Applicant appealed to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

6. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 15 November, 8 and 21 December 2021. I presided over the conciliation conference.

7. 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 would be acceptable to the parties. The signed agreement was filed on 22 December 2021 and is supported by an Agreed Statement – Jurisdictional Pre-requisites prepared by the parties which sets out the basis for the agreement and the jurisdictional prerequisites for the grant of development consent. The agreement involves the Court, pursuant to s 4.16(1) of the EPA Act, granting development consent to the DA, as amended with the agreement of the Council as consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), subject to conditions of consent.

8. The amended application reduces the number of units, changes the roof form, pushes the upper level to the rear to open up view corridors, reduces overall gross floor area, increases side and front setbacks, reduces and removes some front balconies and makes other associated amendments to address the Council’s contentions in relation to setbacks, view impacts, building design and privacy.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons:

General

1. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act.

Randwick Local Environmental Plan 2012

1. The Randwick Local Environmental Plan 2012 (LEP) applies to the Site. The Site is within Zone R3 Medium Density Residential under the LEP. Development for the purposes of a residential flat building is permitted with development consent on land within that zone.

2. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In determining the DA, I have had regard to the objectives of the R3 Medium Density Residential zone in the LEP. Those objectives include, relevantly:

● To provide for the housing needs of the community within a medium density residential environment.

● To provide a variety of housing types within a medium density residential environment.

● To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

● To protect the amenity of residents.

● To encourage housing affordability.

I am satisfied that the Proposed Development is compatible with those objectives.

3. The demolition of existing structures on the land may be carried out with development consent (cl 2.7).

4. The LEP sets height and floor space ratio development standards (cl 4.3 and cl 4.4).

5. The maximum floor space ratio (FSR) for buildings on the Site is 0.9:1 under cl 4.3. However, as the Proposed Development includes a component of affordable rental housing, the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP), which continues to apply to the DA (see [10(1)] below) permits a bonus equivalent to the proportion of affordable rental housing to be provided. As that is 20% (see plan DA07.02 (rev f) – Affordable Housing Calculations), the maximum FSR is therefore 1.1:1. The FSR of the Proposed Development is 1.03:1, which is less than the permitted maximum.

Contravention of height development standard

1. The maximum height for buildings on the Site is 12m and the height of the Proposed Development exceeds the permitted maximum by up to 150 mm at the leading edge of the building on the eastern side of the upper level.

2. The Applicant has made a written request in accordance with cl 4.6 of the LEP that seeks to justify the contravention of the development standard and I am satisfied that development consent should be granted notwithstanding the contravention of the height development standard.

Consideration of cl 4.6 request

1. For the reasons outlined in the cl 4.6 request, I am satisfied that the Proposed Development is consistent with the relevant objectives of the development standard and that there are sufficient environmental planning grounds to support the variation proposed. The variation of the height standard will enable the Proposed Development to include an upper level within the roof form on a sloping block of land and the written request includes various figures which demonstrate the view and solar access impacts associated with the Proposed Development. These figures demonstrate that the non-compliance with the height standard does not create any additional such impacts.

2. I find that the objectives of the development standard are achieved despite the breach, and the Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of the LEP. I am satisfied that those matters have in fact been demonstrated which is the outcome required by subcll 4.6(3) and (4)(a)(i). It follows that strict compliance with the development standards in cl 4.3 of the LEP is both unreasonable and unnecessary.

3. I also accept that the Proposed Development will be in the public interest because it is consistent with the objectives of the R3 Medium Density Residential zone despite the breach of cl 4.3 of the LEP. 

4. For all those reasons, I find that the proposal promotes the economic use and development of the land consistent with its zone and purpose.

5. The concurrence of the Secretary required by cl 4.6(5) is assumed as the contravention of the height standard does not raise any matter of significance for State or regional environmental planning given the nature of the development, and there is no public benefit in maintaining the standards on the facts of this case.

Other provisions of the LEP

1. Clause 6.1 of the LEP deals with acid sulfate soils. The parties agree, and I accept, that the Site is contained within a Class 5 Acid Sulfate Soils area, that the Proposed Development does not propose earthworks more than 5 metres in depth and will not lower the water table within 500mm of any Class 1 to 4 land. On that basis an acid sulfate soils management plan is not required for the Proposed Development.

2. Clause 6.2(3) of the LEP provides that, in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that clause. I accept the agreed submission of the parties that the matters set out in cl 6.2(3) of the LEP are satisfactorily addressed by the Geotechnical Investigation Report prepared by Morrow dated 20 August 2020.

3. Clause 6.4(3) of the LEP applies to the Land and provides that development consent must not be granted to development on land to which the clause applies, unless the consent authority is satisfied that the development—

(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.

4. The proposed development will incorporate appropriate measures to manage stormwater as addressed by the Stormwater Plans prepared by Portes Structural and Civil Engineers dated 7 September 2020, (Stormwater Documents) and the proposed conditions of consent. In this regard the Court notes the parties’ agreement that:

(a) the Stormwater Documents provide details about the provision of on-site detention;

(b) there are adequate permeable areas to allow for on-site collection of stormwater;

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

(d) there is the provision of a rainwater tank which will a good environmental outcome.

5. The Site is located within the area identified as “foreshore scenic protection area” on the Foreshore Scenic Protection Area Map in the LEP. Pursuant to cl 6.7(3) of the LEP, development consent must not be granted for development on land identified as a foreshore scenic protection area unless the consent authority is satisfied that the development:

(a) is located and designed to minimise its visual impact on public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas; and

(b) contributes to the scenic quality of the coastal foreshore.

6. I accept the parties’ agreed position that the DA adequately addresses the requirements of cl 6.7(3) of the LEP by reducing the overall bulk of the Proposed Development and reducing the view of the Proposed Development from the coastal areas and the beach.

7. Clause 6.10 of the LEP provides that development consent must not be granted to any development unless the consent authority is satisfied that any services that are essential for the development are available, or that adequate arrangements have been made to make them available when required. I accept the parties’ submission that the Site, which is in a well-established residential area, has been used for residential purposes for many years. Any service that is essential for the Proposed Development is therefore already available to the Site.

State Environmental Planning Policy No 55—Remediation of Land

1. The State Environmental Planning Policy No 55—Remediation of Land applies to the Site. Under cl 7 of this Policy, a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated and, if so, unless it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. I am satisfied that the Site has been used for residential purposes for many years. It is therefore unlikely to be contaminated and I am satisfied that the Site is suitable for continued use for residential purposes.

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

1. In accordance with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX Certificate (Certificate Number 1107731M_02) prepared by Greenworld Architectural dated 16 December 2021 was submitted with the amended DA. I am satisfied that, in combination with the conditions of consent, the requirements of this policy have been met.

State Environmental Planning Policy (Coastal Management) 2018

1. The Site is within the coastal use area under the State Environmental Planning Policy (Coastal Management) 2018. Under cl 14(1) of that policy, development consent must not be granted to development on land that is within the coastal use area unless the consent authority has considered the matters set out in cl 14(1)(a) subpars (i) to (v), is satisfied of the matters set out in cl 14(1)(b) subpars (i) to (iii), and has taken into account the surrounding coastal and built environment, and the bulk, scale, and size of the proposed development (cl 14(1)(c)).

2. In respect of cl 14(1)(a), the parties agree, and I accept, that the DA, as amended, addresses each of the matters set out in subpars (i) to (v):

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability will not be adversely affected,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores will not be adversely affected,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands will not be adversely affected,

(iv) Aboriginal cultural heritage, practices and places will not be adversely affected; and

(v) cultural and built environment heritage will not be adversely affected.

3. I am also satisfied that the Proposed Development has been designed, sited, and will be managed to minimise any such adverse impacts. Finally, I have taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development as required by cl 14(1)(c).

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

1. 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.

2. The DA is accompanied by a statement of a qualified designer, Martin Bednarczyk of Archispectrum Architects dated 12 November 2021, that verifies the design of the development, as required by subcll 50(1A) and (1AB) of the EPA Regulation.

3. As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, I am satisfied that adequate regard has been given to the design quality principles, and to the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria.

State Environmental Planning Policy (Housing) 2021 and State Environmental Planning Policy(Affordable Rental Housing) 2009

1. The State Environmental Planning Policy (Housing) 2021 commenced on 26 November 2021. However, cl 2 of Sch 7 of that Policy provides that the former provisions of a repealed instrument continue to apply to a development application made, but not yet determined, on, or before the commencement date. As the DA had been made but not yet determined on the commencement date, the provisions of the (now repealed) ARH SEPP continue to apply.

2. The Proposed Development proposes to allocate more than 20% of its gross floor area to affordable rental housing and the ARH SEPP therefore applies: ARH SEPP, cl 10(1)(c).

3. Clause 16A of the ARH SEPP provides that a consent authority must not consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. I am satisfied that the design of the Proposed Development is compatible with the desired future character of the area, which is an established residential area that already contains a number of both older and newer residential flat buildings.

4. The Proposed Development complies with each of the standards in cl 14 of the ARH SEPP.

Randwick Development Control Plan 2013

1. The Randwick Development Control Plan 2013 (DCP) applies to the Site and I accept the parties’ agreed submission that the Proposed Development either meets the relevant controls in that plan or, if not, achieves the objectives of those controls to the extent that this is required.

Public notification and submissions

1. The Council’s Statement of Facts and Contentions indicates that the DA was publicly notified by the Council between 30 November and 14 December 2020. Eleven submissions were received objecting to the approval of the DA. The submissions raised concerns about excessive height, noise, traffic congestion and safety, parking, and visual amenity. The Court also heard oral evidence from six local residents at the commencement of the conciliation conference.

2. The amended plans the subject of this decision were renotified to the local residents from mid-November to 5 December and from 6 December to 20 December 2021. As a result, further submissions were received by the Council which raised a number of concerns:

1. View loss – while the parties acknowledge (and I agree) that there will be some impacts on views, in accordance with the planning principle in Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23, [2004] NSWLEC 140 the parties agreed position, which I accept, is that the Proposed Development results in a reasonable sharing of views given that it is largely compliant with the relevant planning controls. The breach in height over the standard is considered acceptable as it is minor, unlikely to be discernible from most locations and will not significantly increase view impacts.

1. Bulk and scale - The proposed built form generally complies with Council’s building envelope controls, except for a minor height variation to the rear north eastern corner. The land to the south falls significantly in a southerly direction. Due to the limited size of the Site, the natural topography and the substantial compliance with the planning controls, the parties’ joint position, which I accept, is that the proposed built form is an appropriate response to the site constraints.

2. Solar access – The parties acknowledge that the Proposed Development, due to its orientation and elevated position, will impact on the solar access of properties to the south of the Site. The parties’ agreed position is that this is inevitable and that the deletion of the attic floor or increasing the southern side setback would only offer marginal improvements to solar access. I also accept that the affected units to the south of the Site are oriented to the south, to enjoy the coastal view.

3. Acoustic impacts - The proposed addition of a residential flat building in the locality will inevitably be associated with additional noise impacts. However, I accept the parties’ joint position that this is generally to be expected in dense urban environments such as that in which the Site is located.

4. Rear setback - The parties’ joint submission, which I accept, is that the Proposed Development complies with the rear setback controls in the DCP and rear building separation requirements of the ADG.

5. Parking - The reduction in the number of units has meant that the parking is now 0.5 spaces short of compliance with Council’s controls. However, the site is located close to a number of bus routes, Maroubra Beach and the Maroubra commercial area. As such, I accept the parties’ agreed position that strict compliance with the Council’s parking controls is not required.

6. Stormwater - Concerns were raised by residents regarding stormwater. However, the parties say that Council’s engineers have not raised any concerns regarding the Proposed Development and that any impacts on stormwater are addressed by the agreed conditions of development consent. I agree.

3. I accept the parties’ agreed position that the amended DA, and conditions of consent satisfactorily address the issues raised by the objectors to the extent that this is possible and reasonable.

Conclusion

11. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was 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 EPA Act.

13. The Court notes that:

1. Randwick City Council, as the relevant consent authority, has agreed under cl 55 of the EPA Regulation to the Applicant amending the Development Application DA/637/2020, the subject of these proceedings, in the following amended plans and detail:

Plans/drawings	Revision	Prepared by			Dated
DA01.01	F	ArchiSpectrum			12.11.2021
DA01.03	F	ArchiSpectrum			12.11.2021
DA01.04	F	ArchiSpectrum			12.11.2021
DA02.01	F	ArchiSpectrum			12.11.2021
DA02.02	F	ArchiSpectrum			12.11.2021
DA02.03	F	ArchiSpectrum			12.11.2021
DA02.04	F	ArchiSpectrum			12.11.2021
DA02.05	F	ArchiSpectrum			12.11.2021
DA02.06	F	ArchiSpectrum			12.11.2021
DA03.01	F	ArchiSpectrum			12.11.2021
DA03.02	F	ArchiSpectrum			12.11.2021
DA03.03	F	ArchiSpectrum			12.11.2021
DA03.04	F	ArchiSpectrum			12.11.2021
DA04.01	F	ArchiSpectrum			12.11.2021
DA04.02	F	ArchiSpectrum			12.11.2021
DA04.03	F	ArchiSpectrum			12.11.2021
DA04.04	F	ArchiSpectrum			12.22.2021
BASIX Certificate No.			Dated
1135465M_02			16 December 2021

2. the Applicant has uploaded the application to the NSW Planning Portal on 18 November 2021; and

3. the Applicant has subsequently filed the amended plans with the Court on 21 December 2021.

14. The Court orders that:

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

2. The Applicant’s written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, to vary the height of buildings development standard contained in clause 4.3 of that plan is upheld.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA/637/2020, for the demolition of existing structures and construction of a 4 unit, 3 storey residential flat building containing one studio, one 2 bedroom unit and two 3 bedroom units, basement parking for 4 cars and associated landscaping works (infill affordable housing) on the land described as Lot A DP 346056 known as 23 Bona Vista Avenue, Maroubra, subject to the conditions in Annexure A.

………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (362398, pdf)

Architectural Plans (15355721, pdf)

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Decision last updated: 27 January 2022