Land and Environment Court New South Wales Medium Neutral Citation: Olumn Pty Limited v Randwick City Council [2020] NSWLEC 1275 Hearing dates: Conciliation conference held on 18 and 29 May 2020 Date of orders: 29 June 2020 Decision date: 29 June 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: See orders at [33] below Catchwords: DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties — boarding house development 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 No 55—Remediation of Land Cases Cited: 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Category: Principal judgment Parties: Olumn Pty Limited (Applicant) Randwick City Council (Respondent) Representation: Counsel: M Staunton (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Bartier Perry (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2019/2638 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. 783/2018 for the demolition of existing structures and the construction of a three-storey boarding house containing 65 boarding rooms (including a manager's room), communal space, basement car parking for 31 vehicles and garbage storage and laundry area, (the proposal) at 80, 82 & 82A Botany Street and 103 Middle Street, Kingsford (the site) by Randwick City Council (the Council). 2. The appeal was subject to conciliation on 22 October 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. The proceedings were then listed for a hearing commencing onsite on 19 and 20 May 2020. Following the Court's policy, "COVID-19 Further Restrictions" announced on 24 March 2020 and published on the Court's website, the hearing was listed on 6 April 2020 to be conducted via an audio-visual link on 18 May 2020 under s 34C of the LEC Act. 3. Leave was granted by the Court on 12 May 2020 for the applicant to amend the application to rely on amended architectural drawings, subject to a costs order pursuant to s 8.15(3) of the EPA Act. 4. On 18 May 2020, the hearing commenced before me and I heard evidence from three resident objectors. The parties advised me that following the joint conferencing of the planning experts they had reached agreement in relation to amendments to the proposal that addressed the Council's contentions to the Council's satisfaction. The hearing was then adjourned, and the Court ordered a conciliation conference pursuant to s 34 of the LEC Act to commence on the same day. I presided over the conciliation conference. At the conciliation conference, the parties reach agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The conciliation conference was adjourned for the applicant to amend the architectural documentation to reflect the agreed changes to the proposal. 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. 6. There is a jurisdictional prerequisite that must be satisfied before the Court can exercise the power to grant development consent, pursuant to cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The amended proposal 1. The amended proposal is for a three-storey boarding house with 65 boarding rooms, including an onsite manager's room. 2. The form of the mansard roof is amended to increase the setback of the uppermost level from the site's boundaries by deleting rooms on the uppermost level. 3. The site has an area of 1386.05sqm. The amended proposal has a floor space ratio (FSR) of 1.14:1. The landscaped area proportion of the site is 42% and the deep soil area proportion of the site is 24%. Expert evidence 1. The applicant relied on the expert planning evidence of Jeff Mead and the Council relied on the expert planning evidence of Stuart McDonald. The experts prepared a joint report which was filed on 14 May 2020. Planning framework 1. The applicant provided a Detailed Site Investigation Contamination Assessment report prepared by Soilsrock Engineering Pty Ltd dated 28 November 2019 and a Remediation Action Plan (RAP) prepared by Soilsrock Engineering Pty Ltd dated 21 May 2020, which satisfy cl 7 of State Environmental Planning Policy No 55—Remediation of Land. The RAP concludes that the site is suitable for the proposed residential development, subject to the recommendations provided in the report. Condition 20 is imposed on the consent to ensure the land is appropriately remediated. 2. The application is made pursuant to Division 3 of SEPP ARH, which applies to the site at cl 26(c). 3. Clauses 29(2)(a) and (4) of SEPP ARH are in the following terms: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds— (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, … (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). 1. The Applicant's position is that relying on the decision of Moore J in 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13, a cl 4.6 written request is not mandated given the application of SEPP ARH. This is on the basis that cl 29(4) of SEPP ARH expressly allows approval to be granted despite the non-compliance with cl 4.3 of the Randwick Local Environmental Plan 2012 (LEP 2012). Nevertheless, for abundant caution, the applicant prepared a cl 4.6 written request seeking a variation to the height of buildings development standard. 2. The site is zoned R3 Medium Density Residential pursuant to LEP 2012 (cl 2.2 and Land Zoning Map - Sheet LZN_002). The site is at the interface of the R2 Low Density Residential zone located opposite on the northern side of Middle Street and the eastern side of Botany Street. The objectives of the R3 zone, to which regard must be had, are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types 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. • To encourage housing affordability. • To enable small-scale business uses in existing commercial buildings. 1. The FSR development standard for the site is 0.75:1 (cl 4.4 and Floor Space Ratio Map - Sheet FSR_002 of LEP 2012) plus 0.5:1 pursuant to cl 29(1)(c)(i) of SEPP ARH, as residential flat buildings are permissible in the R3 zone. The FSR of 1.25:1 for the site for a boarding house development under SEPP ARH is, if complied with, a standard that cannot be used to refuse consent. 2. The height of buildings development standard for the site is 9.5m (cl 4.3 and Height of Buildings Map – Sheet HOB_002 of LEP 2012). The objectives of the height of buildings development standard are: (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, (b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, (c) 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 Consideration The proposal is compatible with the character of the local area 1. A consent authority must not consent to development to which Div 3 of SEPP ARH applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area, at cl 30A of SEPP ARH. I am satisfied that the design of the development is compatible with the character of the local area and I accept the agreement of the planning experts that the amendments made to the proposal, including setting back the mansard from the face of the façade on the lower levels to achieve a visible step in the appearance of the building above the first two floors, other than on the uppermost floor on the corner where two boarding rooms are accommodated, and the deletion of a single room at the end of the corridor on the upper most floor, has achieved a building envelope and an architectural character that are compatible with the character of the local area. Contravention of the height of buildings development standard 1. The proposal exceeds the development standard by a maximum of 450mm measured to the lift overrun and a portion of the roof surrounding the lift overrun. 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Planning Ingenuity Pty Ltd and dated 21 May 2020. 3. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]). The applicant's written request to contravene the height of buildings development standard 1. The applicant's written request to contravene the height of buildings development standard justifies the contravention of the development standard as an appropriate response to the site's topography and the Council's requirement for the boarding house to have 3m floor to floor heights. 2. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action at [17]-[21]: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]). 2. The applicant's written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the breach is a response to the sloping topography of the site and the area of the breach, in the centre of the building, will not be easily visible from the public domain and does not result in any amenity impacts on adjoining properties. 3. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 4. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the development standard as a justified response to the site's sloping topography and the Council's request to have 3m floor to floor heights. I am satisfied that justifying the aspect of the development that contravenes the development standard as a response to the unique topography of the site can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend Development Application No. DA 783/2018 and to rely upon the following amended plans and documents: Architectural Plans prepared by BKA Architecture dated 20 May 2020 Plan Reference Revision Cover Page, Drawing Number DA-000 6 Calculations, Drawing Number DA-001 10 Site Analysis Plan, Drawing Number DA-003 6 Site Plan, Drawing Number DA-004 7 Lower Basement Plan, Drawing Number DA-089 4 Basement Plan, Drawing Number DA-090 9 Ground Floor Plan, Drawing Number DA-100 9 Level 1 Plan, Drawing Number DA-101 9 Level 2 Plan, Drawing Number DA-102 11 Roof Plan, Drawing Number DA-103 9 North & South Elevations, Drawing Number DA-200 10 East & West Elevations, Drawing Number DA-201 9 Internal Courtyard Elevations, Drawing Number DA-202 9 Sections, Drawing Number DA-300 12 Sections, Drawing Number DA-301 11 Shadow Diagram 8am, Drawing Number DA-700 8 Shadow Diagram 9am, Drawing Number DA-701 6 Shadow Diagram 10am, Drawing Number DA-702 6 Shadow Diagram 11am, Drawing Number DA-703 6 Shadow Diagram 12pm, Drawing Number DA-704 8 Shadow Diagram 1pm, Drawing Number DA-705 6 Shadow Diagram 2pm, Drawing Number DA-706 6 Shadow Diagram 3pm, Drawing Number DA-707 6 Shadow Diagram 4pm, Drawing Number DA-708 8 3D Shadows-82 Botany Street, Drawing Number DA-709 6 3D Shadows-82a Botany Street, Drawing Number DA-710 6 3D views, Drawing Number DA-800 4 Materials & Finishes, Drawing Number DA-900 3 Notification Plan, Drawing Number DA-902 2 Notification Elevations, Drawing Number DA-903 2 Landscape Plans prepared by Landscape Conzept Architects Plan Reference Revision Date Hardscape Plan, page 1 C 20 May 2020 Landscape Plan, Drawing Number LPS34-20-241, page 2 C 20 May 2020 Specification & Detail, Drawing Number LPS34-20-241, page 3 B 8 May 2020 Details, Drawing Number LPS34-20-241, page 4 B 8 May 2020 Documents Clause 4.6 Variation Statement prepared by Planning Ingenuity dated 21 May 2020 Plan of Management prepared by Planning Ingenuity dated 21 May 2020 Remediation Action Plan prepared by SoilsRock dated 30 April 2020 BASIX Certifcate Number 1099151M prepared by Aspire Sustainability Consulting dated 21 May 2020 1. The appeal is upheld. 2. Development Application No. DA 783/2018 (as amended) for demolition of existing structures and construction of a 3 storey boarding house with 65 boarding rooms (including a manager's room), communal space and basement car parking for 31 vehicles, including a garbage storage and laundry area on Lot 1296 in Deposited Plan 752011, Strata Plan 77371 and Lot A in Deposited Plan 321725, otherwise known as 80, 82 & 82A Botany Street and 103 Middle Street, Kingsford, is approved, subject to the conditions at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (425701, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2020