Land and Environment Court New South Wales Medium Neutral Citation: MGA Architects v Randwick City Council [2021] NSWLEC 1366 Hearing dates: Conciliation conference on 27 May 2021 and 15 June 2021 Date of orders: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [12] Catchwords: DEVELOPMENT APPLICATION – boarding house development – R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 8.7, 8.15 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 s 34 Randwick Local Environmental Plan 2012 cll 6.2, 6.4, 6.10 State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55— Remediation of Land cl 7 Category: Principal judgment Parties: MGA Architects Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Randwick City Council (Respondent) File Number(s): 2020/359021 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Randwick City Council (the Respondent) of Development Application No DA/240/2020, for the demolition of existing structures and construction of a 3 storey boarding house comprising 31 boarding rooms, manager's room, basement parking for 16 car spaces, landscaping and associated works at 15 – 17 Strachan Street, Kingsford (the site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 May 2021, and at which I presided. 3. The proceedings commenced onsite, after which the parties continued conciliation discussions at which in-principle agreement was reached on the matters in contention, subject to the preparation of amended plans. 4. I granted an adjournment for the preparation of amended plans, and the final resolution of agreed conditions of consent. 5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 June 2021. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 6. The parties ask me to approve their decision as 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. 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. 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. 8. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments: * Randwick Local Environmental Plan 2012 (RLEP); * State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); * State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 1. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the reasons that follow: Randwick Local Environmental Plan 2012 1. The site is located within the R3 Medium Density Residential zone pursuant to the RLEP, in which the uses proposed by the development application are permitted with consent, and wherein the objectives of the zone are as follows: • 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. On the basis of the geotechnical report prepared by STS Geotechnics dated March 2020, I am satisfied that the proposed basement works can be completed without detrimental impact on the environmental functions and process, neighbouring uses, cultural or heritage items or features of the surrounding land in accordance with cl 6.2 of the RLEP. 2. On the basis of the stormwater layout plans prepared by Global Project Engineers, and the amended landscape plans prepared by Greenplan I am also satisfied that the proposal addresses those matters at cl 6.4(3) of the RLEP. 3. As the site is located in the Kingsford area, I am satisfied that the essential services set out at cl 6.10 of the RLEP are available to the site, and I am further satisfied that the agreed conditions of consent also provide for the same. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. As the development is boarding house development, the provisions of the SEPP ARH apply and I am satisfied that the proposal conforms to those standards at cl 29 of the SEPP ARH for which, if achieved, consent must not be refused. 2. Development standards that must be achieved by boarding house development to permit the grant of consent are found at cl 30 of the SEPP ARH. On the basis of the amended plans, I am satisfied that those standards applicable to the development the subject of the development application are complied with. 3. I have taken into consideration whether the proposed development is compatible with the character of the local area in accordance with cl 30A of the SEPP ARH and I accept that the design and scale of the development is compatible with the local character with particular reference to the streetscape elevation, and the emerging character evident in nearby development at 8 See Street, and 23-25 Strachan Street. For these reasons I am satisfied that the proposed development is compatible with the character of the local area. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The application is also accompanied by a BASIX Certificate (Certificate No. 1097455M_03 dated 3 June 2021) prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000. State Environmental Planning Policy No 55—Remediation of Land 1. I am satisfied at the conclusion set out in Section 4.2 of the Statement of Environmental Effects, prepared by ABC Planning dated May 2020 on the historical uses of the site and I am satisfied in respect of those matters at cl 7 of SEPP 55. Conclusion 1. 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. 2. 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. Orders 1. The Court orders that: 1. The Applicant is granted leave to rely on amended plans and materials as follows: 1. Amended architectural plans prepared by MGA Architects Pty Ltd as referenced in condition 1 of Annexure A; 2. Amended landscape plans prepared by Greenplan as referenced in condition 1 of Annexure A; 3. BASIX Certificate No.1097455M_03 prepared by Max Brightwell dated 3 June 2021. 1. The Applicant is to pay the Respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to development application DA/240/2020 for the demolition of the existing structures and the construction of a 3 storey boarding house, comprising of 28 boarding rooms, manager's room, basement parking 15 cars spaces, landscaping and associated works at 15 – 17 Strachan Street Kingsford, subject to the conditions in the annexure marked "A" and in accordance with the plans marked "B". ………………….. T Horton Commissioner of the Court Annexure A (422436, pdf) Annexure B (13226179, 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: 28 June 2021