Parseh Llanfoyst Pty Ltd v Randwick City Council

[2024] NSWLEC 1090

Land and Environment Court

New South Wales

Medium Neutral Citation:

Parseh Llanfoyst Pty Ltd v Randwick City Council [2024] NSWLEC 1090

Hearing dates:

Conciliation Conference 14 and 15 February 2024

Date of orders:

05 March 2024

Decision date:

05 March 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) 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 as agreed or assessed.

(2) The Applicant’s written request under clause 4.6 of the Randwick Local Environmental Plan 2012 prepared by GSA Planning, seeking a variation of the development standard for solar access set out in section 18(2)(e) of the State Environmental Planning Policy (Housing) 2021 is upheld.

(3) The appeal is upheld.

(4) Development Application DA526/2022 (as amended) for the demolition of existing building, lot amalgamation and construction of a residential flat building comprising eight three-bedroom units and three one-bedroom units with basement carparking and landscaping at 3 & 4 Llanfoyst Street Randwick NSW 2031 is determined by the grant of development consent, subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – demolition – lot amalgamation – construction of residential flat building – affordable housing scheme – solar access - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 38, 64

Randwick Local Environmental Plan 2012, cll 4.6, 6.10

State Environmental Planning Policy (Housing) 2021, Sch 7, ss 8, 16, 18, 19, 21

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, s 6.1

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

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Parseh Llanfoyst Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
N Eastman SC (Respondent)

Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s):

2022/370405

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA526/2022 for the demolition of the existing buildings, lot amalgamation, and construction of a four storey residential flat building with basement parking and landscape works (the Proposed Development) at 3 and 4 Llanfoyst Street Randwick legally described as Lots 1 and 2 in DP 449211 (the Site).

2. The application has been amended by the Applicant to be an affordable housing scheme under the State Environmental Planning Policy (Housing) 2021 (SEPP Housing 2021) with both the ground and first floors set aside for affordable housing.

3. The Appeal was listed for hearing on 13 February 2024 which commenced onsite and the Court heard from objectors.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 14 February 2024 and listed for on-line court on 15 February 2024 to allow the filing of an updated BASIX certificate. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the Development Application subject to conditions.

6. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the Development Application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) to vary a development standard in s 18(2)(e) of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) for solar access. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note.

9. The Housing SEPP was amended in December 2023 and in accordance with the savings and transition provision in s 8 of Sch 7A of the Housing SEPP, those amendments do not apply to the Proposed Development because is it a Development Application that was lodged on 24 October 2023 and was not determined prior to the commencement date.

10. The Proposed Development is subject to Div 1 of Pt 2 of the Housing SEPP under s 16 of the Housing SEPP. The Proposed Development is in an ‘accessible area’. This is confirmed on pages 6-7 (section 2.2.1) of the ‘Traffic Assessment’ filed at tab 1 of the Class 1 Application.

11. The Housing SEPP provides, at s 18, a number of development standards for particular matters relating to development for the purposes of in-fill affordable housing that, if complied with, prevent the consent authority from requiring more onerous standards for the matters and at s 18(2)(e) the Housing SEPP provides a solar access development standard as follows:

“living rooms and private open spaces in at least 70% of the dwellings receive at least 3 hours of direct solar access between 9am and 3pm at mid-winter”

12. The Proposed Development is for a residential flat building that comprises 11 units, 6 of which are nominated as affordable units pursuant to the Housing SEPP. In accordance with the architectural plans, 5 units (45%) will have three hours solar access in mid-winter, between 9am and 3pm which contravenes the solar access development standard.

13. The Applicant relies on a written request (Written Request) pursuant to cl 4.6 of the RLEP to justify the contravention of the development standard for solar access under s 18(2)(e) of the Housing SEPP. The Written Request has been prepared by GSA Planning and is dated February 2024 and filed with the Court on 14 February 2024.

14. The Written Request identifies at section 3, page 3 that 9 of the units comply with the 2 hour requirement of Objective 4A-1 of the Apartment Design Guide (ADG) and so comply with the 70% Design Criteria.

15. The Written Request meets the requirements of cl 4.6(3) of the RLEP in that they seek to justify the contravention of the development standard by demonstrating:

1. that compliance with the development standards is unreasonable or unnecessary in the circumstances of the case, and

2. that there are sufficient environmental planning grounds to justify contravening the development standards.

16. It is noted that there are no stated objectives for specific solar access development standard in the Housing SEPP. Instead, s 18(1) of the Housing SEPP states the following:

The object of this section is to identify development standards for particular matters relating to development for the purposes of in-fill affordable housing that, if complied with, prevent the consent authority from requiring more onerous standards for the matters.

17. I reproduce from page 4 of the Written Request some of the reasoning relevant to compliance being unreasonable or unnecessary in the circumstances of the case as follows:

“the proposal will achieve a high level of residential amenity as demonstrated by meeting the requirements under State Environmental Planning Policy (SEPP) BASIX – 2004, achieve the Design Quality Principles under SEPP 65 – Design Quality of Residential Apartment Development and achieve all relevant objectives under Part 3 and Part 4 of the Apartment Design Guide. Specifically, the proposal achieves natural cross-ventilation for 8 units (72.72%) and solar access achieved for 9 units (82%) of units respectively which is in excess of the requirements prescribed by the ADG. Each unit comprises generous private open space areas in the form of balconies and terraces that are well in excess of the minimum area requirements prescribed by the ADG. Furthermore, the proposal also adopts 2.7m floor to ceiling heights for each unit which also achieves the ADG requirement.”

18. I reproduce from page 7 of the Written Request some of the reasoning relevant to demonstrating sufficient environmental planning grounds to justify contravening the development standard as follows:

“there are sufficient environmental planning and design grounds to justify the proposed contravention of the solar access development standard in the Housing SEPP. This includes the site constraints, improving the functionality and amenity of the site through good urban design, promoting the orderly and economic use of land, and the provision of affordable housing.”

19. Further, from page 4 of the Written Request:

“The site also has an east to west orientation, with ocean views oriented to the east. … Maximising the number of units to achieve solar access may result in a reorientation of the units towards the side northern boundary. The adjoining property at No. 5 Albert Street comprises a two-storey residential flat building with an pitched roof comprising an attic. The adjoining site is elevated above the subject site due to the sloping topography from north to south along Llanfoyst Street. This results in the majority of north facing solar access to living areas and private open space areas of units at the ground and first floor levels to be blocked. Furthermore, orientating living areas and private open space areas to the north would create greater adverse impacts in terms of privacy for adjoining development. Allowing flexibility in the circumstances of this case would achieve better design and amenity outcomes for and from the development.”

20. The matters required by cl 4.6(4)(a) of the RLEP are satisfied and I reproduce from page 9 of the Written Request the following extract as to the zone objectives:

“The proposal is consistent with the objectives of … the R3 Medium Density Residential zone, as discussed below:

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

Response: The proposed residential flat building will provide for the housing needs of the community by providing 11 units, which will form part of a residential flat building consistent within the R3 zone.

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

Response: The proposal will provide 3 x one bedroom and 8 x three-bedroom units within a residential flat building, that provides more versatile units that will be more suitable for a wider range of household types. This is also in accordance with the market demand of the locality which seeks larger family sized units.

Objective: To enable other land uses that provide facilities or services to meet the day to day needs of residents.

Response: N/A

Objective: 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.

Response: The proposal is considered to be compatible with the desired future character of the area, the proposal presents as s 3.5 storeys of residential development above 2.5 storeys of basement levels, with recessed upper levels to address Llanfoyst Street. The subject site is in an area which includes several other residential flat buildings, many of which are between three and four storeys in height and one eight storey development. Given the proposed residential flat building that presents as 3.5 storeys of residential development above 2.5 storeys of basement levels, with recessed upper levels to address Llanfoyst Street The proposal is considered to fits within the context with adjoining buildings ranging from 3 to 8 storeys in the surrounding context.

The proposal also presents a reduction in the bulk and scale when compared with the previous approvals on the site (DA 619/2020 and DA 718/2020). The proposal remains compliant with the FSR and building development standards, which ensures the height and scale of the proposal is consistent in the context. Importantly, an LEP and DCP compliant building envelope on the subject site would result in greater visual bulk to neighbouring properties when compared to the proposal.

Objective: To protect the amenity of residents.

Response: The proposal will not result in unreasonable impacts on adjoining or nearby properties in respect of views, privacy or overshadowing. The proposed development will not result in an increase in shadowing to the adjoining properties or unreasonable view impacts, given it will be reduced in bulk and scale compared to the previously approved envelope. It is considered that an LEP and DCP compliant building envelope would result greater impacts to views and overshadowing to neighbouring properties compared to the proposal. Primary habitable rooms along each of the side boundaries have included privacy screens where necessary to maintain visual privacy for residents of adjoining properties. This limits any potential sightlines from the subject site to adjoining properties and their private open space. Accordingly, the proposal will not result in adverse amenity impacts of surrounding residents and future occupants.

Objective: To encourage housing affordability.

Response: The proposal includes six units to be used for in-fill affordable housing, positively contributing to housing affordability.

Objective: To enable small-scale business uses in existing commercial buildings.

Response: N/A”

21. Clause 4.6(4)(b) of the RLEP is satisfied as the concurrence of the Secretary of the Department of Planning and Environment is to be assumed under s 64 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). In any event (as per cl 4.6(5) of the RLEP):

1. the contravention of the development standard does not raise any matter of significance for State or regional environmental planning; and

2. there is no public benefit of maintaining the development standards in the present circumstances.

22. The Court is satisfied that the applicant’s Written Request seeking to justify the contravention of the non discretionary solar access development standard in s 18(2)(e) of the Housing SEPP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the RLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

23. The Proposed Development complies with the non-discretionary development standard in s 18(2)(d) of the Housing SEPP by providing at least 15% of the site area as deep soil landscape area with minimum dimension of 3m. Also, at least 65% of that deep soil zone is located at the rear of the Site.

1. Car parking is provided in excess of the non-discretionary standard in s 18(2)(f) of the Housing SEPP, with 17 spaces provided. The parties agree that the number of car parking spaces provided is appropriate, particularly having regard to the resident objector concerns about traffic and parking.

24. The State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies, accordingly s 19(1) of the Housing SEPP does not apply pursuant to s 19(2) of the Housing SEPP.

25. In terms of the considerations in s 19(3) of the Housing SEPP, the Respondent has considered, and the parties agree that the Site is within a precinct that is undergoing transition and that the design of the Proposed Development is compatible with the desired future character of the precinct as set out at pages 31 and 33 and section 5.2 of the Statement of Environmental Effects (SEE).

26. The Court is satisfied that s 21 of the Housing SEPP which requires the affordable housing component of the Proposed Development to be used for affordable housing for at least 15 years commencing on the day an occupation certificate is issued and will be managed by a registered community housing provider. Condition 8 of the Consent Conditions.

27. The Proposed Development will have the following services that are essential for the development pursuant to cl 6.10 of the RLEP as confirmed at section 5.4.1 and page 24 of the SEE prepared by GSA planning filed at Tab 5 with the Class 1 Application.

28. Chapters 2 and 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) are relevant to the Proposed Development.

29. Chapter 2 of the Biodiversity and Conservation SEPP seeks to protect the biodiversity values of trees and other vegetation in non-rural areas, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetations. The parties advise the Court that they are satisfied that the Proposed Development is consistent with Chapter 2 of the Biodiversity and Conservation SEPP.

30. Chapter 6 of the Biodiversity and Conservation SEPP provides some jurisdictional prerequisites however it has no application in this Appeal because the Site does not fall within the following catchments (as per s 6.1):

1. The Sydney Drinking Water Catchment.

2. The Sydney Harbour Catchment .

3. The Georges River Catchment.

4. The Hawkesbury-Nepean Catchment.

31. The Development Application is made with the consent of the owner of the site. A copy of the landowner’s consent was filed at tab 4 with the Class 1 Application.

32. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties in accordance with this judgment.

33. 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.

Notations:

34. The Court notes:

1. That the Respondent as the relevant consent authority has agreed, under s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the Development Application DA526/2022 in accordance with the documents below:

Plan name	Drawing Number	Date	Revision	Prepared By
Architectural plans
DA 1001	Cover Sheet	14/02/24	S	Orosi
DA 1003	Site Analysis	14/02/24	S	Orosi
DA 1004	Site and Roof Plan	14/02/24	S	Orosi
DA 1100	Basement 2	14/02/24	S	Orosi
DA 1101	Basement 1	14/02/24	S	Orosi
DA 1102	Ground Level	14/02/24	S	Orosi
DA 1103	First Level	14/02/24	S	Orosi
DA 1104	Second Level	14/02/24	S	Orosi
DA 1105	Third Level	14/02/24	S	Orosi
DA 2001	Elevation Sheet 1	14/02/24	S	Orosi
DA 2002	Elevation Sheet 2	14/02/24	S	Orosi
DA 2003	Elevation Sheet 3	14/02/24	S	Orosi
DA 2004	Elevation Sheet 4	14/02/24	S	Orosi
DA 3001	Cross Section	14/02/24	S	Orosi
DA 3002	Longitudinal Section	14/02/24	S	Orosi
DA 6001	Solar_View from the Sun	14/02/24	S	Orosi
DA 6002	Solar_View from the Sun	14/02/24	S	Orosi
DA 6003	Solar_View from the Sun	14/02/24	S	Orosi
DA 6004	Solar_View from the Sun	14/02/24	S	Orosi
DA 6005	Solar_View from the Sun – Existing	14/02/24	S	Orosi
DA 6006	Solar_View from the Sun – Existing	14/02/24	S	Orosi
DA 6007	Solar_View from the Sun – Existing	14/02/24	S	Orosi
DA 6008	Solar_View from the Sun – Existing	14/02/24	S	Orosi
DA 6009	Solar_View from the Sun – Complying Development	14/02/24	S	Orosi
DA 6010	Solar_View from the Sun – Complying Development	14/02/24	S	Orosi
DA 6011	Solar_View from the Sun – Complying Development	14/02/24	S	Orosi
DA 6012	Solar_View from the Sun – Complying Development	14/02/24	S	Orosi
DA 6021	Shadow Diagrams	14/02/24	S	Orosi
DA 6022	Shadow Diagrams	14/02/24	S	Orosi
DA 6201	Shadow Analysis – Neighbouring Buildings	14/02/24	S	Orosi
DA 6202	Shadow Analysis – Neighbouring Buildings	14/02/24	S	Orosi
DA 7001	Calculation	14/02/24	S	Orosi
DA 7011	Solar Access Plans Details	14/02/24	S	Orosi
DA 7021	Ventilation Diagram Plans	14/02/24	S	Orosi
DA 7031	Finishes Schedule	14/02/24	S	Orosi
DA 7051	Adaptable Unit Layout	14/02/24	S	Orosi
DA 9000	Calculation GFA	14/02/24	S	Orosi
Landscape plans
Basement 1	L001	14.02.24	E	T.C.L
Ground Floor	L002	14.02.24	E	T.C.L
Third Floor	L003	14.02.24	E	T.C.L
Planting | Basement 1	L301	14.02.24	E	T.C.L
Planting | Basement 1	L301A	14.02.24	E	T.C.L
Basement 1 | Planting Mix BA	L301B	14.02.24	E	T.C.L
Basement 1 | Planting Mix BB	L301C	14.02.24	E	T.C.L
Planting | Ground Floor	L302	14.02.24	E	T.C.L
Ground Floor | Planting Mix GA	L302A	14.02.24	E	T.C.L
Ground Floor | Planting Mix GB	L302B	14.02.24	E	T.C.L
Ground Floor | Planting Mix GC	L302C	14.02.24	E	T.C.L
Ground Floor | Planting Mix GD	L302D	14.02.24	E	T.C.L
Ground Floor | Trees	L302E	14.02.24	E	T.C.L
Planting | Third Level	L303	14.02.24	E	T.C.L
Third Level | Planting Mix 3A	L302A	14.02.24	E	T.C.L
Maintenance Schedule	L303	14.02.24	E	T.C.L
Stormwater plans
Cover sheet	D00	30.05.23	B	Smart Structures Australia
Basement 2 stormwater drainage plan	D01	31.01.2024	G	Smart Structures Australia
Basement stormwater drainage plan	D01A	31.01.24	H	Smart Structures Australia
Ground floor stormwater drainage plan	D02	02.02.24	I	Smart Structures Australia
Roof stormwater drainage plan	D06	31.01.24	F	Smart Structures Australia
Pre and post development plans	D07	13.10.23	E	Smart Structures Australia
Stormwater drainage sections and details sheet 1	D10	31.01.24	H	Smart Structures Australia
Stormwater drainage sections and details sheet 2	D11	13.10.23	F	Smart Structures Australia
Erosion and sediment control plan	D15	06.09.22	A	Smart Structures Australia
Documents
State Environmental Planning Policy (Housing) 2021 Written Request for Exception to Development Standards – Clause 18(2)(e) – Solar Access prepared by GSA Planning dated February 2024
Response to OSD Tank Resize prepared by Smart Structures Australia dated 13 February 2024
Design verification statement prepared by Orosi dated 5 February 2024
Addendum 1 – View analysis prepared by Dickson Rothschild dated 09/02/2024
Geotechnical Report prepared by Morrow Geotechnics Pty Ltd dated 13 December 2024
Statement of Design Intent – Basement Excavation prepared by Core Consulting Engineers dated 8 February 2024.
Consultants Advice prepared by BSE True Partners dated 2.02.2024
NatHERS and BASIX Assessment prepared by Efficient Living (Issue D) dated 15 February 2024
BASIX stamped architectural plans (Revision S)

2. The Applicant has filed the amended plans and documents listed in the table at order 2 with the Court on 14 February 2024 and on 15 February 2024.

Orders:

35. The Court orders:

1. 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 as agreed or assessed.

2. The Applicant’s written request under clause 4.6 of the Randwick Local Environmental Plan 2012 prepared by GSA Planning, seeking a variation of the development standard for solar access set out in section 18(2)(e) of the State Environmental Planning Policy (Housing) 2021 is upheld.

3. The appeal is upheld.

4. Development Application DA526/2022 (as amended) for the demolition of existing building, lot amalgamation and construction of a residential flat building comprising eight three-bedroom units and three one-bedroom units with basement carparking and landscaping at 3 & 4 Llanfoyst Street Randwick NSW 2031 is determined by the grant of development consent, subject to the conditions set out in Annexure “A”.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (572572, pdf)

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Decision last updated: 05 March 2024