Randwick BCH Pty Ltd atf Randwick BCH Trust v Randwick City Council

[2024] NSWLEC 1839

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Randwick BCH Pty Ltd atf Randwick BCH Trust v Randwick City Council [2024] NSWLEC 1839

Hearing dates:

Conciliation conference held 23 July, 16 August, 10 and 23 September and 22 and 29 November 2024

Date of orders:

23 December 2024

Decision date:

23 December 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA929/2023 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, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $13,200 within 14 days of the date of these orders.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the RLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA929/2023 (as amended) for the demolition of existing structures, construction of a new eight-storey hotel suite accommodation building including ground floor meals, reception area and medical suite, forty self-contained suites, earthworks, and including a basement level with parking for thirteen cars, bin store, storage and plant areas, and communal open space at 32-34 Blenheim Street, Randwick, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – hotel suite accommodation development – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, Div 10

Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.6, 5.10, 5.21, 6.2, 6.4, 6.10, 6.11

Texts Cited:

NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

Category:

Principal judgment

Parties:

Randwick BCH Pty Ltd ATF Randwick BCH Trust (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
S Simington (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2024/13047

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Randwick BCH Pty Ltd ATF Randwick BCH Trust (the Applicant), against the deemed refusal of Development Application DA929/2023 (the DA) by Randwick City Council (the Respondent).

2. At the date of its lodgement on 9 November 2023, the DA sought consent for the demolition of existing structures to facilitate the construction of an eight-storey mixed use development comprising eight levels of hotel accommodation, with thirty-nine rooms and a ground level cafe use. The proposal included a single level of basement parking for twelve car spaces, signage zones, and associated on-site landscaping works, at 32-42 Blenheim Street, Randwick (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 July, 16 August, 10 and 23 September and 22 and 29 November 2024. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as 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.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent. These contentions included issues of characterisation of the development (with the proposed cafe use not permissible), building height exceedance, floor space ratio (FSR) exceedance, a failure to exhibit design excellence, potential site contamination, vehicle parking shortfalls, and inadequate waste management arrangements amongst other contentions.

6. Agreed design amendments have been made to improve the proposed building's relationship to the site, its context and the desired future character of this part of Randwick. Changes have been made to improve the scale and form of the proposal as it addresses High Street and to consolidate deep soil and open space to the northern frontage along Blenheim Street. The proposal has also been amended to appropriately accommodate a required substation within a chamber addressing Clara Street. These agreed amendments also have the effect of confirming the amount of gross floor area proposed, which is now agreed to be consistent with the development standard for FSR.

7. 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.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. 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.

10. The DA was publicly notified from 16 to 30 November 2023. Two public submissions were received by the Respondent raising concerns including:

1. Inadequate parking and traffic congestion.

2. Non-conformity with the Respondent's future desired use of the High Street Housing Investigation Area.

3. Unacceptable neighbourhood character.

4. Solar access, natural light, view, and privacy impacts.

5. Non-compliance with the relevant height of building development standard.

6. Impacts upon heritage conservation in the vicinity.

11. The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily address the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

12. The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential. The amended DA - characterised as hotel accommodation - is permissible with consent within the R3 zone.

13. The Respondent's initial concern for the permissibility of the proposed cafe is agreed to be resolved by the amended DA, which now provides a ground floor area for meals to be provided to guests or the general public.

14. 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.

15. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the RLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing structures occupying the site.

16. The parties agree, and I am satisfied, that all principal development standards of the RLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings.

17. In such an instance, cl 4.6 of the RLEP requires consideration of a written request from the Applicant demonstrating that compliance with this 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.

18. Clause 4.6 of the RLEP then requires the consent authority (the Court in this instance) to be satisfied that the Applicant's written request adequately addresses the matters set out at cl 4.6, and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard (for height of buildings) and the objectives for development within the zone (R3 Medium Density Residential) in which the development is proposed to be carried out.

19. Additionally, cl 4.6 of the RLEP requires the concurrence of the Planning Secretary be obtained, and requires the Planning Secretary to consider whether the proposed contravention of the development standard raises matters of significance for State environmental planning, and the public benefits of maintaining the standard.

20. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

21. The Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by Ingham Planning Services and dated November 2024.

22. Pursuant to cl 4.3 of the RLEP the site is subject to a height of building development standard of 26m.

23. The amended DA proposes a maximum building height of 26.834m, exceeding the relevant height of building development standard by 834mm and representing a variance of approximately 3.2%.

24. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings 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 desired future character of the immediate locality.

2. The area of building height exceedance relates to a portion of the upper-most floor and the lift overrun, generally set towards the centre of the site and towards the western site boundary.

3. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

4. The site has sloping topography that contributes to an exceedance of the height of building development standard since the proposed ground level is situated approximately mid-way between the highest and lowest levels of the site and the building footprint is not sufficiently large enough to accommodate a step in the building profile.

5. The proposal accommodates a necessary substation within an enclosed chamber integrated within the building form, which contributes to the height exceedance, but is agreed to represent a superior urban design solution when compared to an alternative kiosk substation configuration.

6. The amended DA is now agreed to provide reduced site coverage, increased landscape areas and deep soil, and allow for the introduction of significant trees, which all contribute to the additional building height.

7. The objectives of the RLEP Zone R4 Medium Density Residential land use zone include to provide for the housing needs of the community 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. I am satisfied the amended DA is consistent with these objectives.

8. The objectives of cl 4.3 of the RLEP - Height of buildings - include to ensure that the size and scale of development is compatible with the desired future character of the locality, 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 meets these objectives.

25. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

26. Pursuant to cl 5.10 of the RLEP - Heritage conservation - the site is not a listed heritage item, nor is it situated within a Heritage Conservation Area (HCA). However it is located opposite a HCA (C15 - Randwick Junction) and close to a listed heritage item (I316 - semi-detached pair) at 17-19 Clara Street.

27. The Applicant has provided a Statement of Heritage Impact dated October 2023, and the parties agree that the proposal will not have any adverse impacts on the heritage significance of the nearby item or the HCA. Accordingly, I am satisfied that the amended DA is consistent with cl 5.10 of the RLEP.

28. Pursuant to cl 5.21 of the RLEP - Flood planning - the site is categorised as "Low Hazard" during 1% Annual Exceedance Probability (AEP) events.

29. The parties agree and I am satisfied that the amended DA:

1. Is compatible with the flood function and behaviour on the land.

2. Will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties.

3. Will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood.

4. Incorporates appropriate measures to manage risk to life in the event of a flood.

5. Will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

30. 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 matters set out at cl 6.2(3) are agreed to have been given appropriate consideration. Conditions of consent are imposed to regulate excavation and construction phase works.

31. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the RLEP - Stormwater management - the amended DA includes measures to:

1. Maximise the use of water-permeable surfaces on the site by incorporating generous areas of deep soil landscaping.

2. Include on-site stormwater retention for use as an alternative supply with a 10,000 litre rainwater tank that will be used for irrigation of landscaped areas on the site.

3. Avoid any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters.

4. Incorporate water sensitive design principles by treatment reduction targets for total suspended solids (85%), gross pollutants (90%), total nitrogen (45%), total phosphorous (65%) and quantity (40%).

32. The parties agree, and I am satisfied, that pursuant to cl 6.10 of the RLEP - Essential services - development consent must not be granted unless services that are essential for the development are available or that adequate arrangements have been made to make them available when required.

33. In satisfaction of this clause, a chamber substation has been integrated into the amended DA, addressing Clara Street, to meet the requirements of Ausgrid.

34. The parties agree, and I am satisfied, that pursuant to cl 6.11 of the RLEP - Design excellence - the amended DA has been the subject of rigorous review and analysis during the conciliation conference, with the Respondent's urban design and planning consultants, who now support the proposal and agree that it exhibits design excellence in the terms set out at cl 6.11(4).

35. 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. Pursuant to s 4.6 of SEPP Resilience, I am satisfied that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.

36. Additionally, the Applicant has provided a Detailed Site Investigation, which concludes that the site can be made suitable for the proposed hotel accommodation use. Agreed conditions of consent reflect the recommendations of the DSI.

37. 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.

38. Pursuant to s 2.99 of SEPP Infrastructure, the site is located within 25m of the Sydney Light Rail corridor and includes ground penetration deeper than 2m, which requires concurrence from Transport for NSW (TfNSW). Accordingly, TfNSW has granted concurrence subject to conditions, which are reflected in the agreed conditions of consent.

39. Pursuant to Div 10 of SEPP Infrastructure, the parties agree and I am satisfied, that the R3 Medium Density Residential zone is a 'prescribed zone' and health services facilities are a permitted use. As formally defined, this use extends to include the proposed ground floor medical suite.

40. 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.

41. 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.

42. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 27 November 2024.

Orders

43. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA929/2023 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, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $13,200 within 14 days of the date of these orders.

3. The Applicant's written request, pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the RLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA929/2023 (as amended) for the demolition of existing structures, construction of a new eight-storey hotel suite accommodation building including ground floor meals, reception area and medical suite, forty self-contained suites, earthworks, and including a basement level with parking for thirteen cars, bin store, storage and plant areas, and communal open space at 32-34 Blenheim Street, Randwick, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court 

Annexure A

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Amendments

30 September 2025 - Removed underlining

Decision last updated: 30 September 2025