Savannah No. 1 Pty Ltd v Randwick City Council

[2019] NSWLEC 1640

Land and Environment Court

New South Wales

Medium Neutral Citation:	Savannah No. 1 Pty Ltd v Randwick City Council [2019] NSWLEC 1640
Hearing dates:	Conciliation conference on 13 December 2019
Date of orders:	24 December 2019
Decision date:	24 December 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See orders at [25] below
Catchwords:	DEVELOPMENT APPLICATION – boarding house – view loss – exceedance in height standard – cl 4.6 request for variation – character – 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 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Savannah No. 1 Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: J Oldknow (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Norton Rose Fullbright Australia (Respondent)
File Number(s):	2019/35092
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) /510/2018 by Randwick City Council (hereafter the Council) for the demolition of existing structures, and construction of a four storey boarding house of 18 rooms with parking on Lots 5 and 6 DP 312363, also known as 6 Fenton Avenue, Maroubra (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 December 2019. I presided over the conciliation conference. There were no objectors whom spoke at the conciliation. It is however acknowledged that three objectors spoke at a previous conciliation arranged by the Court, and their issues were considered by the parties in the making of this agreement.

4. Prior to the conciliation conference, and following expert discussion, the applicant sought to amend the associated plans to the DA and the cl 4.6 written request to be relied upon.

5. Based on these amended plans and cl 4.6 written request, seeking a variation in the height standard, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA /510/2018 with conditions.

6. Pursuant to 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. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA /510/2018 with conditions, as described in Annexure B.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and Randwick Local Environmental Plan 2012 (RLEP). In addition, the Randwick Development Control Plan 2013 (RDCP) is of consideration to grant consent to the DA.

8. In compliance with the requirements of SEPP ARH, the DA is supported by amended plans and the conditions of consent which address the relevant requirements for consideration. The site is located within the R3 Medium Density Residential Zone. The proposed development is permissible in the zone, consistent with the character of the local area, and provides sufficient parking for an 18 room (19 lodgers) boarding house. The parties agree the requirements of SEPP ARH are satisfied, specifically cll 29(2) and 30A.

9. The proposed development is required to comply with the provisions of SEPP BASIX. An updated BASIX Certificate No. 943134M_03, dated 2 October 2019, that is relevant to the proposed development is identified in the conditions of consent in compliance with the SEPP BASIX.

10. The parties agree that the relevant provisions of the RLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is identified as flood affected, and therefore the requirements of cl 6.3 of the RLEP are relevant for consideration in granting consent to the DA. The parties are satisfied that these requirements are achieved by the proposed design of the floor levels and flood gates to the basement parking.

11. The proposed development does however exceed the numeric requirement of cl 4.3 (height standard) of the RLEP. All other relevant development standards are satisfied. The parties explained that the height of the proposed development, is at a maximum of 13.14m, which exceeds by 1.14m the height standard (of 12m), as specified in cl 4.3 of the RLEP. This exceedance in height occurs in the central portion of the building, due to projection of the lift overrun/stairwell to allow roof access to communal open space.

12. Therefore, it is accepted that a cl 4.6 written request for variation of the height standard is required for further consideration of the proposed development, pursuant to cl 4.6 of the RLEP, and that the Court must also be satisfied of its consistency with cl 4.6 to grant consent to the DA.

13. The parties agree, that as explained in the cl 4.6 written request, the non-compliant height for the building does not result in a development that is out of character with the local area and is not perceived from the streetscape. The proposed development responds to the need to elevate the habitable rooms above the designated flood planning level.

14. There are no adverse impacts from visual bulk, view loss, solar access or privacy as a result of the non-compliance with the (height) development standard for the proposed development. The parties agree that the non-compliance in height is not inconsistent with the zone objectives or relevant development standard.

15. The parties therefore agree that a variation of the height development standard, pursuant to cl 4.3 of the LLEP, is satisfied by the cl 4.6 written request, and that the requirements for a cl 4.6 written request for variation of the height development standard are satisfied.

16. Having reviewed to the amended cl 4.6 written request, I agree that the cl 4.6 written request for the height standard variation addresses the requirements of cl 4.6(3) by describing sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. The proposed development does not adversely affect the character of the local area and due to the visual perception of the front of the building from the street, the area resulting in height non-compliance will not be a dominant feature as viewed from the main street frontage or result in loss amenity, particularly overshadowing or privacy to adjoining properties. There are sufficient environmental planning grounds, whereby the proposed development achieves the required setbacks and other relevant development standards.

17. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for R3 zone) and the height (cl 4.3) standard, as established in the RLEP. The proposed exceedance is reasonable and limited to the central portion of the development, which does not result in adverse impact to the proposed development, adjoining properties or the character of the local area. The proposed development is in the public interest.

18. I am satisfied that the requirements of cl 4.6 of the RLEP have been addressed and that a variation in the height standard, as provided in cl 4.3, is appropriate.

19. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the RDCP are achieved to the satisfaction of the parties. The parties agree that the amended plans address any potential amenity impacts that would result in the refusal of the DA.

20. The parties agree that the requirements of the RDCP are complied with, based on the amended plans, conditions of consent including a Plan of Management. The proposed development was publicly notified in accordance with the RDCP. During the initial notification period, thirty seven submissions were received by Council. Those submissions were considered by the parties, prior to reaching the agreement.

21. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions.

22. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are resolved to the satisfaction of the parties.

23. I am satisfied that there are no jurisdictional impediments to this agreement and that DA /510/2018 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

24. 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.

25. The Court orders that:

1. The Applicant is granted leave to rely on the following amended plans and additional documents:

Amended Plans
Dwg No.	Rev.	Drawn by	Dated
DA-03.00	Rev 10	Pinnacle Plus Melissa Wilson Landscape Architects	28 October 2019
DA-04.00	Rev 10		28 October 2019
DA-04.10	Rev 11		29 October 2019
DA-04.20	Rev 11		29 October 2019
DA-04.30	Rev 10		28 October 2019
DA-04.40	Rev 10		28 October 2019
DA-04.50	Rev 10		28 October 2019
DA-05.00	Rev 11		29 October 2019
DA-05.05	Rev 10		28 October 2019
DA-06.00	Rev 10		28 October 2019
DA-06.10	Rev 10		28 October 2019
DA-06.20	Rev 11		29 October 2019
DA-06.30	Rev 10		28 October 2019
DA-06.40	Rev 11		29 October 2019
DA-07.00	Rev 10		28 October 2019
DA-08.30	Rev 10		28 October 2019
DA-8.40	Rev 10		28 October 2019
DA-08.50	Rev 11		29 October 2019
DA-08.51	Rev 11		29 October 2019
DA-09.00	Rev 11		29 October 2019
DA-09.10	Rev 11		29 October 2019
LS01	Issue A		2 October 2019
LS02	Issue A		2 October 2019
LS03	Issue A		2 October 2019
Additional Documents
Document	Author	Dated
Plan of Management	ABC Planning Pty Ltd	October 2019
Clause 4.6 to Clause 4.3 of Randwick LEP 2012 (Height Variation)	ABC Planning Pty Ltd	October 2019
BASIX Certificate – Cert No. 943134M_03	2 October 2019
Preliminary Geotechnical Investigation Report (Revision O)	Geotechnical Consultants Australia Pty Ltd	27 September 2019
Acoustic Assessment (Version D)	Blackett Acoustics	October 2019
Flood protection statement	Paz Engineering	2 October 2019
Swept Path Analysis, including Drawing Nos. D08, D09, D10	PDC Consultants	1 October 2019
Traffic and Parking Statement	PDC Consultants	6 September 2019

2. The Applicant is to pay the Respondent’s total costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $8,000.00 within 28 days of the date of these orders.

3. The Applicant’s written request under clause 4.6 of the Randwick Local Environmental Plan 2012, seeking a variation of the development control for height of buildings set out in clause 4.3 of the LEP is upheld.

4. The appeal is upheld.

5. Development Application No. DA/510/2018 for the demolition of existing structures, the construction of a four (4) storey boarding house containing 18 rooms (for 19 lodgers) and basement and on grade car parking, landscaping and associated works at 6 Fenton Avenue, Maroubra is approved, subject to the conditions of consent at Annexure “A”.

………………………

S Bish

Commissioner of the Court

Annexure A (287 KB, pdf)

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Decision last updated: 31 December 2019