Land and Environment Court New South Wales Medium Neutral Citation: Mount St Pty Ltd v Randwick City Council [2021] NSWLEC 1489 Hearing dates: Conciliation conference on 16 June 2021, 14 and 28 July 2021, and 12 August 2021 Date of orders: 25 August 2021 Decision date: 25 August 2021 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [12] Catchwords: DEVELOPMENT APPLICATION – residential apartment development – State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development – residential flat building – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.16, 8.11, 8.15 Environmental Planning and Assessment Regulation 2000, cll 2, 50, 55 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 6.2, 6.4, 6.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Mount St Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2021/44520 Publication restriction: No Judgment 1. COMMISSIONER: This class 1 appeal concerns a development application brought before the Court under s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by the Randwick City Council (the Respondent) of Development Application No. 600/2020 for the demolition of existing structures and construction of a 4-storey residential flat building comprising 6 apartments in two built forms with basement parking at 166 Mount Street, Coogee. 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 16 June 2021, and at which I presided. 3. The proceedings commenced onsite, after which the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention, subject to the resolution of a number of matters which the parties' advised me were capable of resolution. I adjourned the conciliation conference to allow the parties to continue to resolve those matters. 4. I granted an extension to the adjournment on 14 July 2021 to permit notification of amended plans, and adjourned the conciliation on 28 July 201 to permit the finalising of the matter between the parties by no later than 30 July 2021. 5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 July 2021. However, in order to facilitate the lodgement of the amended application on the NSW Planning Portal in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and the filing of the amended application with the Court, in accordance with s 8.15(3) of the EPA Act, the Court granted a further adjournment until 17 August 2021, at which time the parties filed an amended agreement in accordance with s 34(10) of the LEC Act. 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. This decision involves the Court upholding the appeal and granting conditional development consent to the development application. 8. 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. 9. 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 No 55 – Remediation of Land (SEPP 55); * State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65); and * 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. 1. The site is located within the R3 Medium Density Residential zone identified in the RLEP, in which residential flat building development is permitted with consent, and wherein the objectives of the zone 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. On the basis of the Preliminary Geotechnical Assessment prepared by EI Australia dated 29 September 2020, and agreed conditions of consent at Condition 16, I consider those matters at cl 6.2(3) of the RLEP in respect of earthworks to be satisfactorily addressed. 2. I am also satisfied that the concept stormwater plans and landscape plans, when considered together with the conditions of consent at Conditions 23-27, demonstrate conformity with the provisions at cl 6.4(3)(a)-(c) of the RLEP. 3. As the site is currently occupied by a dwelling with access to essential services, and on the basis of the architectural plans prepared by Plus One Design Concepts Pty Ltd that shows suitable vehicular access, I am satisfied that essential services are available, or that adequate arrangements have been made so that essential services will be available when required in accordance with cl 6.10 of the RLEP. 4. For the reasons set out in the Statement of Environmental Effects prepared by Sutherland & Associates dated October 2020, I accept the site has a history of residential use and is not contaminated for the purposes of cl 7 of SEPP 55. 5. As the proposed development is for residential apartment development, the provisions of SEPP 65 apply. Where an application relates to residential apartment development, cl 50(1A) of the EPA Regulation requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement provided by Tone Wheeler, dated 21 July 2021 is in a complying form. 6. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No 1142657M_02 dated 30 June 2021), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation. Orders 1. The Court notes that: 1. With the agreement of Randwick City Council as consent authority, the Applicant has filed on the NSW Planning Portal all relevant amended plans and documents that form the amended development application. 2. The Applicant has filed a copy of the amended development application with the Land and Environment Court. 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away in the amount of $5,725.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development consent for development application no. DA/600/2020, as amended by the Amended Application set out in amended plans and documents at Annexure B, for the demolition of existing structures and construction of a 3/4 storey residential flat building containing 6 units and basement carpark at 166 Mount Street Coogee, is granted subject to the conditions contained at Annexure A. ………………….. T Horton Commissioner of the Court Annexure A (370939, pdf) Annexure B (9580582, 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: 25 August 2021