Primus DMS Pty Ltd v Randwick City Council

[2019] NSWLEC 1083

Land and Environment Court

New South Wales

Medium Neutral Citation:	Primus DMS Pty Ltd v Randwick City Council [2019] NSWLEC 1083
Hearing dates:	Conciliation conference on 25 and 26 February 2019
Date of orders:	26 February 2019
Decision date:	26 February 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [21] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Primus DMS Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) R O’Gorman-Hughes (Respondent) Solicitors: Pikes & Verekers Lawyer (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/9226
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal by Randwick City Council (hereafter the Council) of Development Application (DA) 729/2017, which seeks to demolish existing structures and construct a five storey boarding house consisting, based on amended plans, of 40 rooms with parking for 17 cars on Lot 1458 in DP 752011, also known as 44 Willis Street, Kingsford.

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the EPA Act 1979.

3. The Court arranged a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979), which was held on 25 and 26 February 2019. I have presided over the conciliation conference. There were no objections heard at this conciliation and no site view undertaken. However it is noted that immediately prior to this conciliation, I was the presiding commissioner that heard from five objectors at the site view for the adjourned and subsequently vacated hearing of this matter. The issues raised related to privacy, noise, structural integrity, view loss and overshadowing.

4. Following 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 is to uphold the appeal and grant consent to DA 729/2017 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, 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. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to the DA (729/2017) under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH 2009), specifically clls 25, 29(1)(c), 29(2)(e), 30(1) and 30A; Randwick Local Environmental Plan 2012 (RLEP 2012), specifically clls 2.3, 4.3, 4.4 and 4.6; and Randwick Development Control Plan 2013 (RDCP 2013), specifically relating to landscaping.

7. The site is located within an R3 medium density residential zone, pursuant to RLEP 2012. The approved development is permissible in the zone and the parties agree that the DA is not inconsistent with the zone objectives.

8. The parties explained that the amended plans attached to this DA show a development that generally satisfies the requirements as set out in the SEPPARH 2009, RLEP 2012 and RDCP 2013. Further to this, any strict non-compliance to these requirements has been adequately addressed, as explained below.

9. The parties agree that the amended plans as described in the conditions of consent demonstrate a development that is consistent with the local character, which is described as a mixture of up to five storey residential apartment blocks and single level dwellings. The character of the local area is under a period of transition, influenced by the nearby university, hospital and transport hubs. The proposed boarding house is deemed to service the needs of the community accessing/working in these services. The requirements for consistency with streetscape and character as expressed in clls 29(2)(b) and 30A of the SEPPARH 2009, cl 2.3 of the RLEP 2012 and the RDCP 2013 are achieved by the proposed development. The provision of a front setback with deep soil landscaping supports the presentation of the development consistent with the streetscape.

10. The parties are satisfied that there are no adverse solar access or overshadowing impacts due to the proposed separation of the structures across the site, which also mitigates any potential view loss across the property boundary from the south.

11. Potential noise and privacy impacts have been considered and addressed through the use of highlight windows and acoustic screening on the communal terraced area, adjoining the side boundaries. As a result of the proposed design, the parties consider that there are no adverse amenity impacts, either internally or to adjoining properties.

12. The parties recognise that for a boarding house of this size, the SEPPARH 2009 requires 20 car spaces, pursuant to cl 29(2)(e), which overrides the RDCP 2013 in Part B7 requirement for 9 car spaces. The experts agree however that the amended plans provide sufficient parking for the 40 rooms on this site with 17 basement car spaces accessed from Willis Lane, and a reliance on six ‘independent’ car stackers. They agree that this proposed design will not result in any adverse on-street impacts due to the expected student profile of the boarders, whereby car ownership is not likely to be a significant priority, proximity to walk to services and access to public transport. The basement car park has been shown to function with respect to manoeuvrability and that any requirement to provide structural support to the basement (to protect the development and adjoining properties, as required) will not impede the functioning of the site.

13. The parties acknowledge that the proposed basement car park extends (excavated) to the property boundary, however consider that the requirement to ensure structural integrity to the site and adjoining properties is adequately addressed through conditions of consent requiring a dilapidation report and geotechnical assessment.

14. The rooms, boarding/managers and communal, are of sufficient size and design functionality, consistent with the requirements of clls 29(2)(d) and 30(1) of the SEPPARH 2009. The parties agree that the amended plans have satisfactorily addressed the requirements for landscaping through the use of planter boxes located along the side boundaries and separating the buildings.

15. The parties explained that a portion of the proposed development, limited to the lift overrun does not comply with the maximum height standard (of 12 m), as described in cl 4.3 of the RLEP 2012. Therefore, the parties agree that a cl 4.6 written request for variation of height is required for further consideration of the proposed development, pursuant to cl 4.6 of the RLEP 2012, and that the Court must also be satisfied pursuant to cl 29(4) of the SEPPARH 2009.

16. The parties accept that the height non-compliance is dependent on the level from which ground surface (existing) is measured, and that the cl 4.6 written request considers all potential variances to determining ground level. The parties agree that the cl 4.6 written request describes the worst case scenario, that is applying the survey level along the northern boundary as a natural ground surface, which has a height non-compliance up to 3.13 m.

17. It is agreed that on this basis, the proposed lift overrun does not currently satisfy the cl 4.3 height requirement. The cl 4.6 written request addresses the requirement of cl 4.6(3) by explaining that there are sufficient environmental planning grounds to justify the breach, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. The proposed lift overrun does not adversely affect the character of the local area and due to the recessed nature of the structure on a sloping site, will not be a dominant feature as viewed from the dominant street frontage (Willis Street) or result in loss of amenity, particularly view loss or overshadowing to adjoining properties. There are sufficient environmental planning grounds, whereby the proposed development achieves the required setbacks and floor space ratio, and height compliance at both street frontages.

18. The proposed structure (lift overrun) that results in the breach of the height compliance does not result in a development that is inconsistent with the objectives of the zone (cl 2.3 for R3 zone) and the height standard (cl 4.4), as established in the RLEP 2012. The proposed height exceedance is reasonable and necessary, resulting in a height increase across a minor portion of the site that does not result in adverse impact to the proposed development, adjoining properties or the character of the local area.

19. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the DA, based on the amended plans as provided in the conditions of consent, satisfies the requirements of s 4.15(1) of the EPA Act 1979.

20. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

21. The Court orders:

1. The applicant is granted leave to rely upon the amended plans and documents referred to in condition 1 of annexure “A”.

2. The applicant is to pay the Council’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The amended clause 4.6 variation request prepared by Planning Ingenuity dated 24 February 2019 seeking to vary the height development standard pursuant to cl 4.3 of Randwick Local Environmental Plan 2012 is upheld.

4. Appeal upheld.

5. Development Application DA 729/2017 for demolition of existing site structures and construction of a 40 room boarding house including basement parking at 44 Willis Street, Kingsford is approved subject to the conditions at Annexure A.

……………………….

S Bish

Commissioner of the Court

Annexure A (439 KB, pdf)

Plans (6.86 MB, pdf)

Decision last updated: 01 March 2019