Land and Environment Court New South Wales Medium Neutral Citation: Psaltis v Randwick City Council [2020] NSWLEC 1651 Hearing dates: Conciliation conference on 15 and 30 October 2020, 10, 17 and 20 November 2020 Date of orders: 16 December 2020 Decision date: 16 December 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders: (1) The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at Annexure "A". (2) The appeal is upheld. (3) Development Application DA 270/2019 for the demolition of existing structures and the construction of a boarding house comprising 28 rooms and basement carpark at 43-45 Doncaster Avenue, Kensington is approved subject to the conditions at Annexure "A". Catchwords: DEVELOPMENT APPLICATION – boarding house –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 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Randwick Development Control Plan 2013 Category: Principal judgment Parties: Victor Psaltis (First Applicant) Helen James (Second Applicant) Andreas Sdrolias (Third Applicant) Randwick City Council (Respondent) Representation: Counsel: M Staunton (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/308851 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Randwick City Council (Council) of development application, DA/270/2019 (the DA). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 613.2m2 parcel of land on the corner of Goodwood Street and Doncaster Avenue, Kensington, with a street address of 43-45 Doncaster Avenue and legal description of Lot 45 in DP2905 (the site). The DA was originally lodged with the Council on 17 May 2019 based on plans prepared by Geoform Architects, dated 18 April 2019 (April 2019 plans). The DA sought consent for demolition of the existing residential flat building and construction of a part 3, part 4 storey boarding house containing 36 rooms (including 1x manager's room), with basement parking for 8 cars accessed off Goodwood Street via a car lift. The Manager's room, communal living room and communal open space (in the form of a rooftop terrace) were provided on the fourth level. 3. The DA was notified to adjoining property owners and publicly advertised and exhibited for a 14 day period between 29 May 2019 and 13 June 2019 in accordance with the provisions of the Randwick Development Control Plan 2013 (RDCP). Five submissions by way of objection were received. 4. The Applicant filed the Class 1 Application with the Court on 3 October 2019, and Council filed its Statement of Facts and Contentions (SOFC) on 6 December 2019. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. The s34 conciliation conference, at which Commissioner Walsh presided, was terminated on 26 February 2020. 5. The Applicant then provided amended plans (dated 17 February 2020) to the Council in order to resolve contentions, and on 26 August 2020 filed a Notice of Motion seeking leave to rely on further amended plans dated 13 August 2020 (the August 2020 plans). On 2 September 2020 the Court granted leave to rely on the August 2020 plans, and on 22 September 2020, the Council filed its Amended Statement of Facts and Contentions (Amended SOFC). The August 2020 plans were publicly exhibited from 22 September to 7 October 2020. 6. On 2 October 2020 the Court convened a second s34 conciliation conference. I presided at the second conciliation conference held on 15 and 30 October 2020, and 10, 17 and 20 November 2020. Due to the Court's COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, there was no site inspection as part of the second conciliation conference. Nor were there any oral submissions made by members of the public. 7. In response to the Amended SOFC and as a result of the discussions at the second conciliation conference, further amendments were made to the August 2020 plans. The further amended plans, dated 23 October 2020 (the October 2020 plans) formed the basis of the s34 agreement, which was filed with the Court on 14 December 2020. 8. The main changes between the original April 2019 DA plans and the final October 2020 plans that are the subject of the s34 agreement can be summarised as: 1. The building envelope has been reduced and all floor space removed from the fourth level, resulting in a decrease in height and gross floor area, and reduction in room numbers from 36 to 28 (including manager's room). 2. The communal open space has been split into three locations: two at ground level (at the western and eastern ends of the building) and the third in a small terrace on the rooftop (fourth level). The communal living room has been relocated from the fourth level (now rooftop) to the north-east corner of the building at ground level, with direct access to the eastern communal open space area. 3. The driveway has been increased in width to accommodate two passing vehicles and has been relocated 3.0m further east to provide a landscape buffer along the western boundary. The basement has been relocated in an easterly direction and replanned to allow more deep soil planting along the western and northern boundaries, and the number of car spaces has increased from 8 to 10. 4. The building setbacks on the western, northern and eastern boundaries have all increased: on the western boundary, to Kokoda Park, from 0m to 3.0m at ground level and to 5.0m for the levels above, on Doncaster Avenue from 3.0m to 4.2m over all levels and on Goodwood Street from generally 1.0m to just over 2.0m on all levels. Landscaping of the setbacks has increased accordingly. 1. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out at [10]-[18] below. 2. The Randwick Local Environmental Plan 2012 (RLEP) is the relevant local planning instrument applying to the site. I am satisfied that the development is for the purposes of a "boarding house" which is permissible with consent in the R3 Medium Density Residential Zone (R3 Zone) applying to the site, and that the development meets the objectives of the R3 Zone found at cl 2.3 of the RLEP. 3. The development does not exceed the 12m height of buildings development standard found at cl 4.3 of the RLEP. 4. The maximum permissible floor space ratio (FSR) as set out on the Floor Space Ratio Map referred to in cl 4.4(2) of the RLEP is 0.9:1. Clause 29(1)(c)(i) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), however, provides that consent cannot be refused if the FSR is not more than 0.5:1 higher than the maximum permissible in the relevant LEP. The development has a FSR of 1.2:1 and is therefore compliant with the maximum of 1.4:1 FSR applying in this site by virtue of the SEPP ARH. 5. The site is within the vicinity of a local heritage item (at 58 Doncaster Avenue) and adjacent to a Heritage Conservation Area (HCA) as listed in Schedule 5 of the RLEP. A Heritage Impact Statement was submitted with the DA and consideration has been given to the effect of the proposed development on the heritage significance of the item and HCA, the result of which is that there will be no relevant impact pursuant to cl 5.10(4) of the RLEP. 6. Consideration has also been given to those matters required to be considered in relation to the proposed earthworks in accordance with cl 6.2(3) of the RLEP. 7. Clause 30 of the SEPP ARH contains standards for which the consent authority must be satisfied. These have been considered and the proposed development complies with the relevant standards. 8. Consideration has also been given as to whether the proposed development is compatible with the character of the local area, as required by cl 30A of the SEPP ARH, and the proposal, as amended is acceptable in that regard. 9. For the purposes of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) consideration has been given to whether the site on which the development is to occur is contaminated. A Stage 1 Preliminary Site Investigation Contamination Assessment by Soilsrock Engineering dated 24 November 2020 (PSI) was undertaken and concluded that: 1. if any contamination is present it would be superficial having regard to the long term historical residential land use and activities, and 2. that the land is suitable for its intended use, posing no immediate or long risk to public health or the environment, subject to further soil testing/sampling for waste classification as detailed in the PSI. A condition of consent dealing with site works and remediation (condition 64) has picked up the recommendations in the PSI for further soil sampling. 1. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a Certificate number 1007208M_02 dated 5 November 2020 has been provided demonstrating compliance with the BASIX SEPP. 2. 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. 3. The Court orders: 1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at Annexure "A". 2. The appeal is upheld. 3. Development Application DA 270/2019 for the demolition of existing structures and the construction of a boarding house comprising 28 rooms and basement carpark at 43-45 Doncaster Avenue, Kensington is approved subject to the conditions at Annexure "A". ……………………………….. J Bindon Acting Commissioner of the Court Annexure A (431467, pdf) Plan (2125266, 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: 16 December 2020