Lee v Randwick City Council [2021] NSWLEC 1551

Land and Environment Court New South Wales

Medium Neutral Citation: Lee v Randwick City Council [2021] NSWLEC 1551 Hearing dates: Conciliation conference on 21 June, 19 and 30 July, and 13 August 2021 Date of orders: 22 September 2021 Decision date: 22 September 2021 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [12] Catchwords: DEVELOPMENT APPLICATION – boarding house development – mixed use development in B2 Local Centre zone – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 4.3, 4.6, 5.10 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Environmental Planning and Assessment Regulation 2000, cl 55 Category: Principal judgment Parties: Alan Lee (Applicant) Randwick City Council (Respondent) Representation: Counsel: P Saab (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent)

Solicitors: Macquarie Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2021/35987 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 refusal by the Randwick City Council (the Respondent) of Development Application No. DA/331/2019 for development of the site including retention of ground level restaurant and front 2 storeys of the building, with three level boarding house above comprising 11 boarding rooms, communal room and balcony, 1 car space, 16 bicycle spaces, garbage storage and associated works at 23 Belmore Road, Randwick (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 21 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 a further adjournment on a number of occasions to permit the finalising of the matter between the parties by no later than 16 August 2021. 5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 16 August 2021. 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 involved 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 (Affordable Rental Housing) 2009 (Affordable Housing SEPP), * State Environmental Planning Policy No 55 – Remediation of Land, * 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 B2 Local Centre identified in the RLEP, in which boarding house development is permitted with consent, and wherein the objectives of the zone are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To enable residential development that is well-integrated with, and supports the primary business function of, the zone. • To facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community. • To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones. • To facilitate a safe public domain. 1. The proposed development exceeds the height of building development standard of 12m applicable to the site pursuant to cl 4.3 of the RLEP, and the Applicant relies on a written request prepared by SJB Planning in accordance with cl 4.6 of the RLEP dated 27 July 2021 (the written request). 2. The written request identifies the maximum height of the proposed exceedance as 535mm measured at a location of the roof, and 1.96m high, at the location of the proposed passenger lift. 3. The objectives of the height standard at cl 4.3 of the RLEP are: (a) To ensure that the size and scale of development is compatible with the desired future character of the locality; (b) To ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item; and (c) To ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. 1. I am satisfied that compliance with the height standard is unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non-compliance for the reasons set out in the written request summarised as follows: * As the topmost level of the proposal where the exceedance occurs is setback between 21.43m and 24.36m from the Belmore Road frontage, it is setback further than a number of existing buildings nearby, it will not be readily perceived in the streetscape, and is not associated with an exceedance of gross floor area, as the proposal is below the permitted maximum floor space ratio (FSR). * As contributory elements to Belmore Road are retained, the proposal retains the existing streetscape character and appearance consistent with the closest heritage items on Belmore Road. When the siting of the lift overrun and fourth storey setback are considered the breach in height has limited, if any impact on the Randwick Junction HCA. * The proposal below the 2:1 maximum FSR permitted, and approximately over half the building is below the height control. It does not result in privacy impacts or loss of views, given its orientation and the form and scale of surrounding development, but does propose additional overshadowing that is limited to the rear service lane. 1. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard for the following reasons: * Firstly, as the cause of the exceedance is isolated to the passenger lift that services all four (4) levels of the proposed boarding house to ensure accessibility to users that would not be otherwise available if a lift was not provided, or serviced only 3 levels. * Secondly, as the proposed boarding house rooms provide for increased amenity above the minimum requirements of the Affordable Housing SEPP in the form of 2.7m ceiling heights, resulting in a modest exceedance to the rear of the property of 535mm without imposing unreasonable impacts. * Thirdly, as the exceedance is limited to the rear of the site to permit the retention of heritage elements and an otherwise sympathetic addition when read from the primary street address on Belmore Road. 1. Next, I accept that the proposed development is consistent with the objectives of the B2 Local Centre zone because it integrates ground floor restaurant and accommodation which are needs of people in the zone, provides a total of six (6) bicycle parking racks, two (2) motorcycle spaces and one (1) car space within a highly accessible area served by public transport, contributes to a sense of place through high quality design by retaining heritage fabric without significant adverse impact on neighbouring properties. 2. As I am satisfied that the proposed development is consistent with objectives of the height standard, and the B2 zone, I conclude the proposal is in the public interest pursuant to cl 4.6(4)(a)(ii) of the RLEP. In forming this opinion of satisfaction, I am assisted by 3-dimensional views of the proposed development in its context at Figures 6 and 7 of the written request, and which I consider to illustrate a limited sightline of the bulk of the exceedance that is, in my view, compatible with the bulk, scale and character of the streetscape. 3. Furthermore, given the modest scale of the exceedance, I am satisfied that the Secretary's concurrence can be assumed in accordance with cl 4.6(5) of the RLEP, and I find the written request should be upheld. 4. The Site is within the Randwick Junction Heritage Conservation Area (Randwick Junction HCA) and there are properties nearby that are listed for their local heritage significance in Schedule 5 of the RLEP. Accordingly, cl 5.10 of the RLEP requires that the consent authority, or the Court on appeal, must consider the effect of the proposed development on the heritage significance of the Randwick Junction HCA. 5. On the basis of the agreement of the urban design and heritage experts as to the amendments contained in the amended application, I conclude that the impact of the proposed development on the Randwick Junction HCA is acceptable. 6. I am satisfied that that element of the proposed development comprising boarding house development complies with the provisions of the Affordable Housing SEPP for the reasons that follow: * The proposal achieves the 'must not refuse' provisions at cl 29 of the Affordable Housing SEPP, but for in respect of height and the number of car parks provided. * The proposal achieves the development standards applicable to boarding houses in cl 30 of the Affordable Housing SEPP. * The parties' urban design experts are agreed that the proposal as amended is compatible with the character of the local area as required by cl 30A of the Affordable Housing SEPP. 1. On the basis of the detailed assessment set out in the Statement of Heritage Impact prepared by NBRS dated April 2019, I accept the site history supports a conclusion that it is not contaminated for the purposes of cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land. 2. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No 1125268M_02 dated 4 August 2021), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation).