Land and Environment Court New South Wales Medium Neutral Citation: Najac Holdings Pty Limited v Randwick City Council [2021] NSWLEC 1182 Hearing dates: Conciliation conference on 9 April 2021 Date of orders: 15 April 2021 Decision date: 15 April 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant is granted leave to rely upon the amended plans and documents listed in Condition 1 of Annexure "A" hereto; (2) The Applicant pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environment Planning and Assessment Act 1979 as agreed or assessed; (3) The appeal is upheld; (4) Development Consent for Development Application DA/333/2019 for demolition of existing structures and construction of a three storey boarding house with 10 boarding rooms, internal and external communal areas, basement car parking for five cars, landscaping and associated uses at 137 Barker Street, Randwick NSW 2031 is granted subject to the conditions of consent annexed hereto and marked "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 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, COVID-19 Pandemic Arrangements Policy (July 2020) Randwick Comprehensive Development Control Plan 2013 Category: Principal judgment Parties: Najac Holdings Pty Limited (Applicant) Randwick City Council (Respondent) Representation: Counsel: L Whiting (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Hall & Willcox (Applicant) Randwick City Council (Respondent) File Number(s): 2020/247216 Publication restriction: No Judgment 1. COMMISSIONER: Najac Holdings Pty Limited (the Applicant) has appealed the refusal by Randwick Council (the Respondent) of its development application (DA/333/2019) which seeks consent for demolition of existing structures and construction of a three level boarding house, a single level of basement carparking, along with associated works (the Proposed Development) at 137 Barker Street, Randwick (the Subject Site). 2. The Subject Site is zoned R2 Low Density Residential under the provisions of Randwick Local Environmental Plan 2012 (RLEP), and the Proposed Development is permissible within that land use zone. The Applicant's development application is made with owners' consent. 3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 9 April 2021, and I presided over the conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken at the commencement of the conciliation conference. 6. 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. This decision involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 7. 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. 8. The Parties have advised that there are jurisdictional matters that must be satisfied in order for the Court to have power to grant consent to the Proposed Development, and that these requirements have been satisfied as follows: 1. in relation to the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed that a detailed site investigation and remediation action plan has been prepared in support of the applications Proposed Development. On the basis of that information, and conditions of consent that will be imposed with the grant of consent, I am satisfied that, as required under the provisions of cl 7(1) of SEPP55, that the Subject Site will be: 1. suitable for its proposed future residential use; and 2. remediated before it is used for residential purposes. 1. the provisions of Division 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the Proposed Development, and in relation to these the Parties advise, and I accept, as follows: 1. clause 29 of SEPP ARH provides that the consent authority must not refuse consent on certain grounds if certain prescribed standards are met, and in relation to these: 1. clause 29(1)(a) provides that if the Proposed Development has a floor space ratio (FSR) of not more than the existing maximum FSR for any form of residential accommodation permitted on the Subject Site, then the consent authority must not refuse the development application on grounds of density or scale. The FSR development standard applicable to the Subject Site is 0.75:1 and the Proposed Development has a FSR of 0.75:1. 2. clause 29(2)(a) concerns building height and under its provisions SEPP ARH adopts the RLEP height of buildings development standard applicable to the Subject Site. The Proposed Development does not exceed the height of buildings development standard in the RLEP of 9.5m applicable to the Subject Site. 1. clause 30(1) of SEPP ARH sets further development standards for boarding houses. A consent authority must be satisfied that any proposed boarding house has complied with these standards before consent can be granted to such a proposal. The Parties agree, and I accept, that the Proposed Development complies with these standards and, as a minimum, includes: 1. a communal living room; 2. no boarding room that has a floor area greater than 25m2 (excluding kitchen and bathroom); 3. no boarding room that would be occupied by more than two adult lodgers; 4. the provision of adequate bathroom and kitchen facilities in each boarding room; 5. bicycle spaces and motorcycle spaces as required under SEPP ARH. 1. clause 30A of SEPP ARH provides that a consent authority must not grant consent unless it has taken into consideration whether the design of the development is compatible with the character of the local area, and the Parties have confirmed, and I accept, that the Proposed Development is compatible with the character of the local area; 1. in relation to the provisions of RLEP, the Parties have confirmed, and I accept, that the Applicant's development application (as amended) satisfies all applicable provisions of RLEP, and where required, this satisfaction is supported through the imposition of conditions of consent within Annexure "A" to this judgment. In particular, the Parties have confirmed, and I accept, that the following specific provisions of RLEP have been addressed by the Applicant's Proposed Development (as amended): 1. clause 2.3(2) of RLEP requires that the consent authority, or the Court on appeal, should have regard to the objectives of the R2 Low Density Residential zoning of the Subject Site in relation to the Proposed Development. Development for the purposes of a boarding house is permissible in the R2 Low Density Residential zone and regard has been had to the objectives of the zone by the Parties in relation to the Proposed Development; 2. clause 4.3 of RLEP concerns the maximum height of buildings applicable on land that is subject to the provisions of RLEP, and the Proposed Development does not exceed the 9.5m height of buildings standard applicable to the Subject Site; 3. clause 4.4 of RLEP concerns the FSR development standard applicable to the Subject Site which is 0.75:1, and the Proposed Development has a FSR of 0.75:1 and is, therefore, compliant with the applicable standard. 1. consistent with the provisions of cl 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and the Environmental Planning and Assessment Regulation 2000 (the Regulation), a BASIX Certificate (Certificate number: 1012226M_04 issued on 10 December 2020) has been submitted in relation to the development application, as amended. The Certificate identifies that the development complies with applicable water, thermal comfort and energy targets; 2. the Proposed Development has been notified consistent with the provisions of Randwick Comprehensive Development Control Plan 2013 (RDCP), the Regulation, and submissions received in response to that notification have been considered by the Parties in reaching agreement in this appeal. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 4. 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. 5. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 6. The Court orders that: 1. The Applicant is granted leave to rely upon the amended plans and documents listed in Condition 1 of Annexure "A" hereto; 2. The Applicant pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environment Planning and Assessment Act 1979 as agreed or assessed; 3. The appeal is upheld; 4. Development Consent for Development Application DA/333/2019 for demolition of existing structures and construction of a three storey boarding house with 10 boarding rooms, internal and external communal areas, basement car parking for five cars, landscaping and associated uses at 137 Barker Street, Randwick NSW 2031 is granted subject to the conditions of consent annexed hereto and marked "A". ………………………….. M Chilcott Commissioner of the Court Annexure A (420003, 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