Land and Environment Court New South Wales Medium Neutral Citation: Gross Holdings Pty Ltd v Randwick City Council [2021] NSWLEC 1112 Hearing dates: Conciliation conference on 12 February 2021 Date of orders: 15 April 2021 Decision date: 15 April 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The Orders of the Court are: (1) The appeal is upheld. (2) Modification Application No. DA/899/2018/A to modify Condition 6 of Development Consent No. 899/2018 is approved, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – modify a condition of consent requiring a contribution for affordable housing – minor miscalculation – conciliation conference – agreement between the parties 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 Category: Principal judgment Parties: Gross Holdings Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: G Baron (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Baron & Associates (Applicant) Randwick City Council (Respondent) File Number(s): 2020/254527 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. 899/2018/A to amend a condition of consent of the Development Consent No. 899/2018 (the development consent) to correct a miscalculation of the contribution required for mitigating the loss of low rental accommodation pursuant to s 7.32 of the EPA Act and cl 51 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), at 171 Todman Avenue, Kensington (the site) by Randwick City Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 February 2021. I presided over the conciliation conference. 3. 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. 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 4.55(1) of the EPA Act to modify the development consent because it involved a minor miscalculation. 5. I accept the agreement of the parties that the proposed development the subject of the development consent is likely to reduce the availability of affordable housing in the area. Section 7.32 of the EPA Act applies to the existing development at s 7.32(1)(a) and cl 49(1)(a) of SEPP ARH. 6. The consent authority, or the Court exercising the functions of the consent authority, may grant consent to a development application to which s 7.32 applies subject to a condition requiring the payment of a monetary contribution to be used for the purpose of providing affordable housing, at s 7.32(2)(b), if the requirements under subs (3) are met. I am satisfied that Condition 6, as amended by the modified development consent, complies with the relevant requirements of Pt 3 of SEPP ARH; and the Randwick Local Environmental Plan 2012 (LEP 2012) which requires a reasonable contribution having regard to the scale of the proposed development. I accept the agreement of the parties that the condition is authorised by to be imposed as a condition of consent by LEP 2012. The site is not within a special contributions area within the meaning of s 7.1 (described in Sch 4 to the EPA Act), pursuant to s 7.32(6). Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Modification Application No. DA/899/2018/A to modify Condition 6 of the development consent is approved, subject to the consolidated conditions of consent at Annexure A. ………………………. Susan O'Neill Commissioner of the Court Annexure A (340475, pdf) Plans (2369947, 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: 15 April 2021