Nikhoush v Randwick City Council
[2025] NSWLEC 1777
•31 October 2025
|
New South Wales |
Case Name: | Nikhoush v Randwick City Council |
Medium Neutral Citation: | [2025] NSWLEC 1777 |
Hearing Date(s): | Conciliation conference held 15 July and 8 August 2025 |
Date of Orders: | 31 October 2025 |
Decision Date: | 31 October 2025 |
Jurisdiction: | Class 1 |
Before: | Pullinger AC |
Decision: | The Court orders that: |
Catchwords: | DEVELOPMENT APPLICATION – residential apartment building development – cl 4.6 written request – floor space ratio – in-fill affordable housing – agreement between the parties – orders |
Legislation Cited: | Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15 |
Texts Cited: | NSW Department of Planning, Apartment Design Guide, July 2015 |
Category: | Principal judgment |
Parties: | Arash Nikhoush (Applicant) |
Representation: | Counsel: |
File Number(s): | 2025/83376 |
Publication Restriction: | Nil |
JUDGMENT
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Arash Nikhoush (the Applicant), against the deemed refusal of Development Application DA19/2025 (the DA) by Randwick City Council (the Respondent).
At the date of its lodgement on 20 January 2025, the DA sought consent for site amalgamation of two existing lots, demolition of existing structures and tree removal, and construction of a part-three, part-four storey residential apartment building comprising seven residential units (including one affordable housing unit), a basement level comprising twelve car spaces, communal open space, ancillary and landscaping works at 56-58 Bream Street, Coogee (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 15 July and 8 August 2025. I presided over the conciliation conference.
During the conciliation conference, the parties reached agreement to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions raised by the Respondent. These contentions included issues of inconsistency with the land use zone objectives, exceedance of the relevant floor space ratio (FSR) control, incompatibility with the local area and desired future character, inadequate side setbacks, inadequate solar access amenity available to certain apartments, inadequate landscaped open space, excessive external wall height, excessive excavation, and unreasonable offsite impacts of overshadowing, privacy and cross viewing, amongst other contentions.
Agreed, design amendments have now been made to improve the proposed building’s relationship to the site and its context. Changes have been made to reduce the overall proposed bulk and scale, to alter the configuration of one apartment to achieve improved solar access, to redistribute proposed floor space benefiting the affordable housing apartment, to introduce privacy screens eliminating cross viewing and improve visual privacy for neighbouring properties, and to introduce improved landscaping. Additional information has been provided to the satisfaction of the Respondent, and other issues such as waste management and the provision of visitor parking have been resolved.
These amendments also have the effect of reducing the total number of car parking spaces from twelve to eleven.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
The DA was publicly notified in accordance with the Respondent’s Community Engagement Strategy for fourteen days from 30 January 2025. A total of fifteen submissions were received by the Respondent raising concerns including:
(1)Earthworks and potential construction phase impacts to neighbouring properties.
(2)Overshadowing and impacts upon solar access.
(3)Visual and acoustic privacy impacts.
(4)Building bulk and scale impacts and streetscape character.
(5)Lack of detail regarding a retaining wall situated on the site boundary.
(6)Construction phase impacts, including potential asbestos management, vibration and noise.
(7)Tree removal and loss of native habitat.
(8)Traffic, parking and safety impacts.
(9)Stormwater drainage and runoff.
(10)Architectural design.
(11)Inadequate infrastructure and services.
(12)The proposed variation to development standards.
(13)Potential impacts upon property values.
At the commencement of the conciliation conference, at the site on the morning of 15 July 2025, four affected local residents addressed the Court to restate their concerns, and the Court visited a number of neighbouring properties to directly observe the relationship between the site and neighbouring dwellings.
During the adjourned conciliation conference, I made time available to allow the Applicant to amend the DA in an effort to resolve the Respondent’s contentions and address objectors’ concerns.
The amended DA was re-notified for fourteen days, from 16 to 30 July 2025. Five further submissions were received by the Respondent in response to the re-notification, restating a number of concerns including:
(1)Impacts to local services and amenity.
(2)Increase in height, bulk and scale of the development.
(3)Overshadowing and solar amenity impacts.
(4)Privacy impacts.
(5)Non-compliance with planning controls and inconsistency with the immediate local character.
(6)Loss of green space, environmental impacts and habitat loss.
(7)Tree removal, including along the nature strip on Brook Street, Coogee.
(8)Traffic impacts and reduced availability of on-street parking.
(9)The prospect of creating an undesirable precedent.
The parties agree that the amended DA addresses and mitigates against a range of concerns raised by objectors, primarily by reducing the proposed building form, bulk and scale, and by ensuring improved privacy between neighbouring properties, which reduces opportunities for cross viewing.
The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent have now satisfactorily considered the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.
The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is the relevant local environmental planning instrument.
Pursuant to cl 2.1 of the RLEP, the site is zoned R3 Medium Density Residential. The amended DA - characterised as residential apartment development - is permissible with consent within the R3 zone.
The parties agree, and I am satisfied, that pursuant to cl 2.3 of the RLEP, the amended DA is consistent with the R3 Medium Density Residential zone objectives.
Pursuant to cl 4.3 of the RLEP - Height of buildings - the site benefits from a development standard for building height of 12m. However, certain provisions set out within Ch 2 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing), dealing with affordable housing, make up to an additional 30% building height available in exchange for the provision of 15% of the proposed GFA as in-fill affordable housing.
The amended DA seeks to rely upon the full 30% additional building height - an amount determined by the quantum of total gross floor area (GFA) proposed as in-fill affordable housing - taking the resultant building height development standard to 15.6m. The amended DA complies with this development standard.
Similarly, and pursuant to cl 4.4 of the RLEP - FSR - the site benefits from a development standard for FSR of 0.9:1. Again, certain provisions set out within Ch 2 of SEPP Housing, make up to an additional 30% FSR available in exchange for the provision of up to 15% of the resultant GFA as in-fill affordable housing for a period of fifteen years.
The amended DA seeks to rely upon this 30% additional FSR (in exchange for the provision of 15% of the proposed GFA as in-fill affordable housing) taking the resultant maximum FSR development standard to 1.17:1, equivalent to 716.74sqm of GFA.
The amended DA seeks consent for a total FSR of 1.22:1, equivalent to 748.16sqm, and representing an exceedance of the development standard by 31.42sqm, or approximately 4.5%.
Clause 4.6(3) of the RLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
Accordingly, the Applicant has provided a written document seeking to vary the FSR development standard, prepared by GSA Planning and dated September 2025.
The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the FSR development standard for the following reasons:
(1)The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and anticipated future character of the immediate locality.
(2)The amended DA seeks to access FSR bonuses available within Ch 2 of SEPP Housing in exchange for the provision of in-fill affordable housing for a period of fifteen years consistent with the policy objectives of SEPP Housing.
(3)The amended DA generally presents to the surrounding street frontages as a four-storey residential apartment building, with its uppermost floor set back from the street and differentiated from the typical floors below.
(4)The amended DA does not give rise to unreasonable adverse overshadowing impacts or cross viewing with neighbouring properties.
(5)The objectives of the RLEP R3 Medium Density Residential land use zone include 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 enable other land uses that provide facilities or services to meet the day to day needs of residents; 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; and to enable small-scale business uses in existing commercial buildings. I am satisfied the amended DA is consistent with these objectives.
(6)The relevant objectives of cl 4.3 of the RLEP - FSR - include to ensure that the size and scale of development is compatible with the desired future character of the locality, to ensure that buildings are well articulated and respond to environmental and energy needs; to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item; and to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. I am satisfied the amended DA is consistent with these objectives.
Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.
The parties agree, and I am satisfied, that all remaining principal development standards of the RLEP have been met by the amended DA.
The parties agree, and I am satisfied, that pursuant to cl 5.10 of the RLEP - Heritage conservation - the site is not an identified heritage item, nor is it situated within a Heritage Conservation Area or near any identified heritage item.
The parties agree, and I am satisfied, that pursuant to cl 6.1 of the RLEP - Acid sulfate soils - the site is situated within a Class 5 area as mapped in the RLEP. The amended DA is accompanied by a preliminary Acid Sulfate Soils Assessment, prepared by KFM Geotech and dated 1 July 2025. This assessment concludes that a detailed acid sulfate soils management report is not necessary.
The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the RLEP - Earthworks. The Applicant has provided a Geotechnical Report prepared by KFM Geotech dated 10 October 2024 addressing the matters set out at cl 6.2(3), which the parties agree, and I am satisfied, have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.
The parties agree, and I am satisfied, that pursuant to cl 6.4 of the RLEP - Stormwater management - the Applicant has provided amended Stormwater Plans. The amended DA satisfactorily addresses those matters set out at cl 6.4(3) and the proposal is designed to maximise water-permeable surfaces on the site, including on-site stormwater retention, and avoids significant adverse impacts of stormwater runoff on adjoining properties.
The parties agree, and I am satisfied, that pursuant to cl 6.10 of the RLEP - Essential services - the site is suitably supplied with water and electricity services, and has access to the main sewer system. The amended DA proposes a stormwater management system and appropriate vehicular access to parking levels.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.
Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated, and that the proposed use of the land is to remain residential in nature.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.
Section 2.48 of SEPP Infrastructure applies to the amended DA since the site is crossed by an easement for electricity purposes. The DA was referred to the electricity supply authority, Ausgrid, which has provided its reply. The authority’s response has been taken into consideration by the parties in reaching this agreement, and agreed conditions of consent are imposed reflecting the requirements of the supply authority.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No 1278646M_09, dated 27 August 2025, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.
The parties agree, and I am satisfied, that SEPP Housing is an additional relevant environmental planning instrument.
Chapter 2 of SEPP Housing deals with Affordable Housing, and the amended DA is subject to the relevant provisions for in-fill affordable housing set out at Pt 2, Div 1.
Relevantly, I am satisfied that development for the purposes of residential apartment buildings is permitted with consent in the R3 Medium Density Zone pursuant to the RLEP. The affordable housing component proposed within the amended DA is equivalent to 17.778% of the total FSR (given the overall FSR exceedance, already addressed in the Applicant’s cl 4.6 request and dealt with earlier in this judgment), and all of the proposed development is located within a defined ‘accessible area’.
Pursuant to s 16(1) of SEPP Housing, the relevant FSR development standard is calculated by adding the base FSR for the land (0.9:1 pursuant to the RLEP) to an additional FSR of 30%, based on the proposed affordable housing component.
For the subject site and amended DA, this equates to a total incentive FSR of 1.17:1, which is then varied by a cl 4.6 request as noted above, taking the total FSR to 1.22:1. It is agreed that the amended DA proposes a total of 748.16 sqm of GFA.
Consistent with s 16(2) of SEPP Housing, the amended DA then allocates 133.75 sqm of GFA as the in-fill affordable housing component, in the form of one identified unit (Unit 2 in the amended DA), which is equivalent to 17.87% of the maximum FSR.
Section 19(2) of SEPP Housing provides a number of relevant non-discretionary development standards. The amended DA complies with all relevant non-discretionary development standards.
Section 20 of SEPP Housing sets out certain design requirements. The parties agree, and I am satisfied, that the amended DA is compatible with the desired character of the local area, noting that the operation of SEPP Housing means that the local area is a precinct undergoing transition.
Section 21(1)(a) of SEPP Housing requires that, commencing at occupation certificate, the development will provide the in-fill affordable housing component for a period of 15 years. Further, s 21(1)(b) requires the consent authority (the Court in this instance) to be satisfied that the affordable housing component will be managed by a registered Community Housing Provider (CHP). Accordingly, the amended DA specifies Bridge Housing Pty Ltd trading as HomeGround Sydney as the CHP.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of SEPP Housing.
Pursuant to the relevant provisions of SEPP Housing, the EPA Reg, the Applicant's architect, SOMA (and its nominated architect Mr Sohail Masoudi - NSW registered architect 10,689) has prepared a Design Verification Statement dated 28 August 2025, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA.
Additionally, and pursuant to ss 145 of SEPP Housing, I am satisfied the DA was referred to the Respondent’s Design Review Panel on 5 April 2025, and its advice considered in the assessment of the amended DA.
Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.
The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.
Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
The Court notes that:
(1)Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.
(2)The Applicant has lodged the final amended DA with the Court on 15 October 2025.
Orders
The Court orders that:
(1)Leave is granted to the Applicant to amend Development Application DA19/2025 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.
(2)Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $6,500 within 28 days of the date of these orders.
(3)The appeal is upheld.
(4)Consent is granted to Development Application DA19/2025 (as amended) for site amalgamation of two existing lots, demolition of existing structures and tree removal, and construction of a part-three, part-four storey residential apartment building comprising seven residential units (including one affordable housing unit), a basement level comprising eleven car spaces, communal open space, ancillary and landscaping works at 56-58 Bream Street, Coogee NSW, subject to the conditions of consent at Annexure A.
M Pullinger
Acting Commissioner of the Court
Annexure A (490 KB, pdf)
Architectural Plans (26.7 MB, pdf)
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Amendments
05 November 2025 - Removed underlining and added architectural plans
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