Scape Australia Swanston Pty Ltd v Randwick City Council

[2021] NSWLEC 1344

Land and Environment Court

New South Wales

Medium Neutral Citation:

Scape Australia Swanston Pty Ltd v Randwick City Council [2021] NSWLEC 1344

Hearing dates:

Conciliation conference on 1 June 2021

Date of orders:

11 June 2021

Decision date:

11 June 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Orders of the Court are:

(1) The appeal is upheld.
(2) Development Application No. 717/2018 for lot consolidation, demolition of existing structures, and construction of a 9 storey boarding house containing 152 beds (sleeping a maximum of 176) across 149 rooms (including 1 manager’s residence with private open space) over 1 level of basement parking containing 4 car spaces (1 space for service and delivery, 1 car share space, 1 manager/staff space and 1 accessible space), 31 motorcycle spaces and 34 bicycle spaces, with 244sqm of indoor communal space and 118.88sqm outdoor communal space on the ground floor, business identification signage, landscaping and associated works, on the land at 18-26 Ascot Street, Kensington and in the road reserve directly in front of 18-26 Ascot Street, Kensington, is approved, subject to the conditions of consent at Annexure A.
(3) The exhibits, other than Exhibits 2 and Y, are returned.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – accepted letter of offer for a planning agreement – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 7.4, 8.7

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.2, 4.3, 6.2, 6.3, 6.4, 6.10, 6.11, 6.17

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 7, 26, 27, 30

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Scape Australia Swanston Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/195308

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 717/2018 for lot consolidation, demolition of existing structures, and construction of a 9 storey boarding house containing 149 rooms (including 1 manager’s residence with private open space) over 1 level of basement parking containing 4 car spaces (1 space for service and delivery, 1 car share space, 1 manager/staff space and 1 accessible space), 31 motorcycle spaces and 34 bicycle spaces, with 244sqm of indoor communal space and 118.88sqm outdoor communal space on the ground floor, business identification signage, landscaping and associated works (the proposal), on the land at 18-26 Ascot Street, Kensington (the site) and in the road reserve directly in front of the site, by Randwick City Council (the Council).

2. The appeal was subject to conciliation on 3 December 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. The appeal proceeded to a hearing on 17 May 2021, which commenced onsite, where I heard from the resident objectors. During the hearing, the applicant filed a Notion of Motion seeking orders that the applicant be granted leave to amend the application and that the hearing be vacated and the proceedings be returned to the Registrar for conversion to a s 34 conciliation conference. The Court ordered that the applicant be granted leave to amend the application to rely on amended architectural plans (Ex Y) and other documents. The hearing was vacated and the proceedings adjourned to 27 May 2021 before the Registrar.

3. The Court arranged a conciliation conference between the parties, which was held on 1 June 2021. I presided over the conciliation conference. 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. The applicant submitted that the Council has accepted a Letter of Offer from the applicant dated 13 May 2021 for the purpose of entering into a planning agreement pursuant to s 7.4 of the EPA Act (Letter of Offer, Attachment 2).

4. 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 development application.

Jurisdictional preconditions to the grant of development consent are met

5. There are jurisdictional preconditions to the exercise of power to grant development consent for the proposal. I am satisfied that those preconditions are met by the proposal and that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. I accept the agreed submission of the parties as documented in the Jurisdictional Statement at Attachment 1 in the absence of any contrary evidence.

6. The application is made pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). SEPP ARH applies to the site at cll 7 and 26(f) and to the proposal at cl 27(1). I am satisfied, by the agreed submission of the parties, that the proposal complies with the standards for boarding houses at cl 30 of SEPP ARH (Attachment 1, par 33). I am satisfied that the proposal is compatible with the character of the local area because it is consistent with the strategic vision for the Kensington Town Centre.

7. I am satisfied that consideration has been given to whether the land is contaminated, as required under cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land, and that this matter is satisfactorily addressed by the Preliminary Geotechnical Investigation that forms part of the application and the conditions of consent at Annexure A. The land will be remediated in accordance with a detailed Remediation Action Plan as required by conditions 20-23 and this work will be carried out as required by conditions 24-27.

8. The site is zoned B2 Local Centre pursuant to Randwick Local Environmental Plan 2012 (LEP 2012) (cl 2.2 and Land Zoning Map – Sheet LZN_001 of LEP 2012). Development for the purposes of a boarding house and commercial premises is permissible with consent in the B2 zone. The objectives of the zone, to which regard must be had, are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To enable residential development that is well-integrated with, and supports the primary business function of, the zone.

• To facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community.

• To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones.

• To facilitate a safe public domain.

9. I am satisfied that the proposal is consistent with the objectives for the B2 zone under LEP 2012.

10. The site has a height of buildings development standard of 21m and 11m (cl  4.3 and Height of Buildings Map HOB_001 of LEP 2012). The site does not have a floor space ratio (FSR) development standard.

11. Clause 6.17 of LEP 2012 permits the consent authority to consent to development on a site that results in additional building height or floor space, or both, in accordance with subcl 6.17(4), if the development includes community infrastructure on the site, at subcl (2). In deciding whether to grant development consent, the consent authority must be satisfied that the development is consistent with the objectives of the clause, and be satisfied that the community infrastructure is reasonably necessary at Kensington and Kingsford town centres, and take into account the nature of the community infrastructure and its value to the town centre, at subcl (3). The objectives of cl 6.17 are:

(a) to allow greater building heights and densities at Kensington and Kingsford town centres where community infrastructure is also provided,

(b) to ensure that those greater building heights and densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities,

(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure.

12. The alternative building height map (Alternative Building Heights Map – Sheet ABH_001 of LEP 2012) has a maximum height of 31m and 19m for the site. The alternative FSR map (Alternative FSR Map – Sheet AFSR_001 of LEP 2012) has a FSR of 4:1 for the part of the site that is 20-26 Ascot Street, Kensington. I accept the parties agreed submission that the applicant’s Letter of Offer to enter into a planning agreement (Attachment 2) satisfies the requirements under subcll 6.17(3)(b) and (c) of LEP 2012. I am satisfied that the proposal is consistent with the objectives of cl 6.17 of LEP 2012, as required under cl 6.17(3)(a), because the proposal complies with the maximum building height and FSR specified by subcl 6.17(4) of LEP 2012 as shown on the applicable maps.

13. Clause 6.2 of LEP 2012 for Earthworks requires the consent authority to consider the following matters before granting development consent for earthworks:

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

14. I accept the agreed submission of the parties that the matters set out under subcl 6.2(3) of LEP 2012 are satisfactorily addressed by the geotechnical investigation and civil engineering plans that form part of the application and the conditions of consent including, but not limited to, conditions 41, 54, 64 and 79.

15. Part of the site is categorised as being “low hazard” on the Flood Planning Map referred to by cl 6.3(2)(a) of LEP 2012. Development consent must not be granted to development on land to which cl 6.3 applies unless the consent authority is satisfied, under cl 6.3(3), that the proposal:

(a) is compatible with the flood hazard of the land, and

(b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

16. I accept the agreed submission of the parties that the proposal will incorporate appropriate measures to manage the risk of flood as addressed by the Stormwater Management Report and conditions of consent including, but not limited to, conditions 47, 48 and 49.

17. Clause 6.4 of LEP 2012 Stormwater applies to the site at subcl 6.4(2). Development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied, under cl 6.4(3), that the proposal:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

18. I accept the agreed submission of the parties that the proposal will incorporate appropriate measures to manage the stormwater as addressed by the Stormwater Management Report and conditions of consent including, but not limited to, conditions 50 and 51.

19. The application was referred to Sydney Airport and the response dated 8 March 2021 was tendered as part of the Council’s bundle, Ex 3. Several conditions of consent are proposed to ensure that the operations of the airport are not compromised by the development as referenced in condition 9.

20. I accept the agreed submission of the parties that essential services are available for the proposal as required under cl 6.10 of LEP 2012.

21. I am satisfied that the proposal exhibits design excellence and that it will contribute positively to realising the strategic vision for the Kensington Town Centre, pursuant to cl 6.11 of LEP 2012 (Attachment 1, par 25).

22. I accept the agreed submission of the parties (Attachment 1, par 40) that the issues raised by the resident objectors are satisfactorily addressed by the amendments made to the proposal (Ex Y).

Orders

23. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 717/2018 for lot consolidation, demolition of existing structures, and construction of a 9 storey boarding house containing 152 beds (sleeping a maximum of 176) across 149 rooms (including 1 manager’s residence with private open space) over 1 level of basement parking containing 4 car spaces (1 space for service and delivery, 1 car share space, 1 manager/staff space and 1 accessible space), 31 motorcycle spaces and 34 bicycle spaces, with 244sqm of indoor communal space and 118.88sqm outdoor communal space on the ground floor, business identification signage, landscaping and associated works, on the land at 18-26 Ascot Street, Kensington and in the road reserve directly in front of 18-26 Ascot Street, Kensington, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits 2 and Y, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (1408272, pdf)

Attachment 1 (685489, pdf)

Attachment 2 (2643533, pdf)

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Decision last updated: 11 June 2021