Tektonik Pty Ltd v Randwick City Council

[2023] NSWLEC 1448

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tektonik Pty Ltd v Randwick City Council [2023] NSWLEC 1448

Hearing dates:

Conciliation conference on 28 July 2023

Date of orders:

11 August 2023

Decision date:

11 August 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) in relation to the height of buildings standard at clause 4.3 of the RLEP, prepared by ABC Planning Pty Limited dated July 2023, is upheld.

(2) The Applicant is to pay the Council’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,250.00.

(3) The appeal is upheld.

(4) Development consent is granted to Development Application No. DA/415/2022 seeking the demolition of the existing buildings and structures, construction of a mixed use development comprising one retail space and 16 residential units comprising 8 x 1 bedroom, 5 x 2 bedroom and 3 x 3 bedroom units (including affordable housing), basement carparking for 15 car spaces and 1 visitor space, at 229 Anzac Parade, Kensington, subject to conditions at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION — mixed use development in B2 Local Centre zone – residential apartment development – conciliation conference – agreement between parties – orders

Legislation Cited:

Civil Aviation Safety Regulations 1998, reg 139.370

Environmental Planning and Assessment Act 1979, ss 4.16, 7.4, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 29, 37

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.2, 6.4, 6.8, 6.9, 6.10, 6.11, 6.17, 6.18, 6.20

Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

State Environmental Planning Policy No. 65: Design Quality of Residential Apartment Development, cll 28, 30

Texts Cited:

Randwick City Council, Kensington and Kingsford Town Centres Community Infrastructure Contributions Plan, December 2019

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Tektonik Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
C Reid (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Reid & Vesely Solicitors (Applicant)
Randwick City Council (Respondent)

File Number(s):

2022/319871

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Randwick City Council (the Council) of Development Application DA/415/2022 seeking consent for the demolition of the existing structures and construction of a part nine, part six mixed use development comprising one retail premises, 16 residential apartments and 15 car spaces and 1 visitor space, at 229 Anzac Parade, Kensington.

2. On 28 July 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

3. At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 26 July 2023, in accordance with s 34(10) of the LEC Act.

4. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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

6. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. The development application, lodged on 17 August 2022, is supported by written consent of the owner. The Council advertised the development application between 25 August 2022 and 22 September 2022.

8. The site is located within an area identified by the Randwick Local Environmental Plan 2012 (RLEP), at the time the development application was lodged, to be a B2 Local Centre zone in which the proposed uses are permitted with consent.

9. However, on 26 April 2023, the commencement of the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021, and State Environmental Planning Policy Amendment (Land Use Zones) (No 3) 2022 resulted in the re-zoning of the land under the RLEP to E2 Commercial with the following zone objectives:

“•  To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

•  To encourage investment in commercial development that generates employment opportunities and economic growth.

•  To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

•  To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•  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.

•  To support a diverse, safe and inclusive day and night-time economy.”

10. According to the Height of Buildings Map at cl 4.3(2) of the RLEP, a height standard of 24m applies to the site. However, cl 6.17(2) permits consent to be granted to development that results in additional building height if the development includes community infrastructure on the site.

11. A letter of offer dated 5 June 2023 proposes community infrastructure of a sort that is consistent with the Kensington and Kingsford Town Centres Community Infrastructure Contributions Plan in satisfaction of cl 6.17(3) RLEP as to the necessity and value of the community infrastructure proposed by the development. The letter of offer has been accepted by the Council, deferred commencement conditions are proposed at Conditions A1 and A2 for the parties to enter into a planning agreement in accordance with s 7.4 of the EPA Act prior to the operation of the consent, and certain conditions of consent are agreed as to the execution of that community infrastructure.

12. The alternative building heights map at cl 6.17(4)(a) of the RLEP provides for a height of 31m to that portion of the site fronting Anzac Parade, and a height of 19m to that portion of the site fronting Houston Lane.

13. The proposed development exceeds the height standard of 19m, by a dimension of 895mm and the Applicant relies on a written request prepared in accordance with cl 4.6 of the RLEP by ABC Planning, dated July 2023.

14. I am satisfied that compliance with the height standard at cl 6.17(4)(a) of the RLEP is unreasonable or unnecessary for the reasons set out in the written request, summarised as follows:

1. Due to the degree and location of the height exceedance, and the nature of existing built form adjoining the site, the exceedance will not be perceived from Houston Lane or from Anzac Parade.

2. The proposed built form is compatible with the existing built form evident in Houston Lane given the proposed parapet height that is the subject of the exceedance is merely 300mm above that of the adjoining building, is set back 4m from the Houston Lane frontage, and to the extent it may be seen from a distance, it would be viewed against the backdrop of taller built form within that portion of the site permitted to be 31m in height.

3. The function of the roof top open space provides a positive communal amenity in a location on the site that does not impose any adverse environmental impact on adjoining or nearby properties.

4. While the exceedance arises from a number of storeys beyond that contemplated by the Randwick Development Control Plan 2013 (RDCP), the number of storeys proposed are substantially within the controls found in the RLEP which overrides provisions in the RDCP, and the outcome is consistent with the desired future character of the Kensington Town Centre, as set out in the RDCP.

15. I am also satisfied that the reasons stated at [14] are also sufficient environmental planning grounds to justify the contravention of the height standard. Additionally, I accept that the roof top communal open space which is the particular aspect of the development that exceeds the height standard at cl 6.17(4)(a) of the RLEP, provides a greater degree of landscaping to the development.

16. Finally, the written request asserts consistency with the objectives of the zone, at [9], because the proposed height variation facilitates the provision of a landscaped communal terrace area which contributes to the amenity of the development, is associated with a mixed use development that will contribute to the viability of the commercial centre, and because the height variation does not generate any inconsistency with any of the zone objectives.

17. I note here that the Council is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the RLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the E2 Commercial Zone.

18. Furthermore, the Council does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the RLEP.

19. Accordingly, the Council raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

20. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the E2 Commercial Zone, for the reasons given in the request.

21. In forming this opinion of satisfaction, I accept that the proposed development is otherwise substantially contained within the height plane permitted by the provisions at cl 6.17(4)(a) of the RLEP, and that the external form of the development is compatible with adjoining development.

22. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the RLEP and I find no grounds on which the Court should not uphold the written request.

23. According to the floor space ratio (FSR) map at cl 4.4(2), an FSR standard of 3:1 applies to the site. However, cl 6.17(2) permits consent to be granted to a development that results in additional floor space if the development includes community infrastructure on the site. In that event, a maximum FSR of 4:1 is permitted by cl 6.17(4)(b), with which the proposal complies.

24. On the basis of the Geotechnical Investigation prepared by Douglas Partners dated March 2022 and filed with the Class 1 Application, and the Concept Stormwater Drainage plans prepared by M+G Consulting, I am satisfied as to those matters at cl 6.2(3) of the RLEP 2012.

25. On the basis of the same Concept Stormwater Drainage plans, I consider the arrangement of onsite stormwater detention, stormwater filter pit and connection of all downpipes to the rainwater tank to satisfy me of those matters at cl 6.4(3) of the RLEP.

26. The Council is satisfied that the proposed development will penetrate the Limitation or Operations Surface, pursuant to cl 6.8(2) of the RLEP. The Civil Aviation Safety Authority, as the relevant Commonwealth body, has advised by letter dated 11 July 2023 that the infringement is considered minor, the building will not be a hazardous object under the regulation 139.370(1) of the Civil Aviation Safety Regulations 1998, and has proposed a condition of consent that is incorporated in the agreed conditions of consent at Condition 8.

27. The site is not considered to be near the Sydney (Kingsford Smith) Airport, and is located within an ANEF Contour of 20 or greater. However, the Council has considered an acoustic report prepared by Acoustic Logic dated 2 September 2022, on the basis of which the Council concludes the proposed development is not likely to be adversely affected by aircraft noise. As such, the provisions of cl 6.9(3) of the RLEP are not engaged.

28. Given the location of the site is in an established and highly serviced area of metropolitan Sydney, I am satisfied that the essential services identified at cl 6.10 of the RLEP are available to the development.

29. As the proposed development is greater than 15m in height, development consent must not be granted unless the consent authority is satisfied that the proposed development exhibits design excellence, in accordance with cl 6.11(3) of the RLEP. The Council has considered those matters to which regard must be had at cl 6.11(4) of the RLEP and is satisfied that the proposed development exhibits design excellence.

30. The Applicant has agreed to provide an Affordable Housing Levy Contribution, pursuant to cl 6.18 of the RLEP by the dedication of affordable housing dwellings on the site, and a condition of consent has been imposed to this effect in accordance with cl 6.18(4).

31. The site is identified on the Active Street Frontages Map pursuant to cl 6.20(2) of the RLEP. Ground floor commercial use is proposed to that portion of the site fronting Anzac Parade, which is the street frontage for the purposes of the Active Street Frontages Map. Accordingly, I am satisfied that the ground floor is to be used for commercial premises in accordance with cl 6.20(3) of the RLEP.

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

32. Section 29 of Environmental Planning and Assessment Regulation 2021 (EPA Regulation) provides:

1) A development application that relates to residential apartment development must be accompanied by a statement by a qualified designer.

(2) The statement must—

(a) verify that the qualified designer designed, or directed the design of, the development, and

(b) explain how the development addresses—

(i) the design quality principles, and

(ii) the objectives in Parts 3 and 4 of the Apartment Design Guide.

…

33. A design statement, authored by Mr John Andreas (Arch Reg No 7590) and dated 20 July 2023 has been prepared in support of the proposal. The design statement is in a complying form; explaining those matters at s 29(2)(b) of the EPA Regulation.

34. The design statement also assists the Court to consider those matters to be considered in determining a development application at cl 28 of State Environmental Planning Policy No. 65: Design Quality of Residential Apartment Development (SEPP 65), and to demonstrate that adequate regard has been had to those matters at cl 30(2) of SEPP 65.

State Environmental Planning Policy (Resilience and Hazards) 2021 (‘SEPP Resilience and Hazards’)

35. Section 4.6 of the SEPP Resilience and Hazards precludes development consent to any development unless it has been considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable, or will be suitable after undergoing remediation, for the proposed use.

36. A preliminary site investigation prepared by Metech Consulting dated 12 January 2022 concluded that further investigation was warranted. A Soil Vapour and Groundwater investigation report by the same author dated 28 March 2023, found that soil, soil vapour and groundwater had been assessed to be low and the site is suitable for the proposed use. On the basis of those conclusions, I accept the site is suitable for the proposed development.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

37. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1284447M_03), prepared by Efficient Living Pty Ltd dated 12 July 2023 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

38. 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.

39. 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.

40. The Court notes that:

1. Randwick City Council, as the relevant consent authority has agreed, under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. 415/2022 in accordance with the amended plans and materials contained at Annexure A.

2. The Applicant filed the updated architectural plans and BASIX associated material on the Planning Portal on 25 July 2023, and with the Court on 24 July 2023 and 28 July 2023.

Orders

41. The Court orders that:

1. The request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) in relation to the height of buildings standard at clause 4.3 of the RLEP, prepared by ABC Planning Pty Limited dated July 2023 is upheld.

2. The Applicant is to pay the Council’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,250.00.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA/415/2022 seeking the demolition of the existing buildings and structures, construction of a mixed use development comprising one retail space and 16 residential units comprising 8 x 1 bedroom, 5 x 2 bedroom and 3 x 3 bedroom units (including affordable housing), basement carparking for 15 cars and 1 visitor space, at 229 Anzac Parade, Kensington, subject to conditions at Annexure B.

T Horton

Commissioner of the Court

319871.22 Annexure A

319871.22 Annexure B

**********

Decision last updated: 11 August 2023