Land and Environment Court New South Wales Medium Neutral Citation: Kiang v Randwick City Council [2022] NSWLEC 1282 Hearing dates: Conciliation conference held on 31 March 2022, 26 April 2022 and 13 May 2022, final agreement filed 20 May 2022 Date of orders: 2 June 2022 Decision date: 02 June 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA/617/2021 and rely on the amended plans and documents listed at condition 1 of Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $6,800. (3) The Applicant's written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (RLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the RLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA/617/2021 (as amended) for the demolition of existing structures and construction of a part three-, part four-storey residential flat building, containing six apartments (including three affordable housing units), basement parking, landscaping and associated works at 33-35 Church Street, Randwick, NSW 2031, subject to the conditions of consent contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential flat building development – cl 4.6 written request – height of buildings – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, cl 29 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 4.3, 4.6, 5.21, 6.1, 6.2, 6.4, 6.10 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 13, 14 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2021) Category: Principal judgment Parties: Siew Leng Kiang (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): 2021/329620 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA/617/2021 (the DA) by Randwick City Council (the Respondent). The DA sought consent for the demolition of existing structures and construction of a part three-, part four-storey residential flat building comprising six apartments, including affordable housing scheme, with basement parking at 33-35 Church Street, Randwick (the site). 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 31 March 2022, 26 April 2022 and 13 May 2022. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter commenced with a site viewing limited in the number of participants before resuming by Microsoft Teams. 4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 5. Whilst the amended DA remains largely the same as the original proposal, a series of design changes have cumulatively resolved the contentions initially raised by the Respondent, which in turn related to streetscape character, building separation, landscape design and residential amenity, amongst other contentions. 6. Of relevance, the amended DA has been reconfigured to result in a reduction to its bulk and scale and a more cohesive roof form. The amendments also bring with them a reduction in overshadowing associated with a recess to the rear of the building, along with improvements to the internal residential amenity and a reduction of privacy impacts upon neighbouring dwellings. The building height and gross floor area have both reduced as a result of the amendments to the plans. 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 amended DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 10. The DA was publicly notified from 14 October 2021 to 28 October 2021. Thirteen submissions were received by the Respondent. Further, five affected residents provided oral evidence at the commencement of the s34 conciliation conference. The parties agree that the final design changes incorporated within the amended DA satisfactorily resolve the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1) of the EPA Act has been appropriately addressed. 11. The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is a relevant environmental planning instrument. The site is zoned R3 Medium Density Residential and the proposed development - characterised as a residential flat building - is permissible with consent and the amended DA achieves the objectives of the R3 zone. 12. The parties agree, and I am satisfied, that all principal development standards of the RLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings - which establishes a maximum building height of 9.5m for the site. 13. In such an instance, cl 4.6(3) of the RLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 14. Clause 4.6(4) of the RLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 15. Additionally, cl 4.6(4)(b) of the RLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter. 16. As required by cl 4.6 of the RLEP, the Applicant has provided a written request (prepared by GSA Planning and dated May 2022) seeking to vary the height of building development standard. 17. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of building development standard for the following reasons. 18. The objectives of the RLEP R3 Medium Density Residential land use zone include 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 protect the amenity of residents, and to encourage housing affordability. The parties agree, and I am satisfied, the amended DA meets these objectives. 19. The objectives of cl 4.3 of the RLEP seek to ensure that the size and scale of development is compatible with the desired future character of the locality, to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage items, and 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. The parties agree, and I am satisfied, the amended DA meets these objectives. 20. The amended DA exceeds the height of buildings development standard of 9.5m by approximately 520mm, equating to an exceedance of 5.47% at its greatest extent. 21. The DA has been amended to resolve the contentions previously raised by the Respondent. The area of height exceedance represents a small portion of the total proposed building volume and is associated with an upper portion of the lift overrun. The height exceedance is generally incorporated within the roof form and design amendments ensure the resultant composition is cohesive and generally not intrusive when viewed from surrounding public vantages points. I am also satisfied the variation to height of building brings with it no material environmental impacts or additional overshadowing. 22. Consequently, the parties agree, and I am satisfied, the Applicant's cl 4.6 written request adequately justifies the proposed variations to height of buildings. 23. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 5.21 - Flood planning - of the RLEP. The site is not situated within a mapped flood area. 24. The parties agree, and I am satisfied, that pursuant to cl 6.1 - Acid sulfate soils - of the RLEP, the site is not located within a mapped acid sulfate soils area. 25. The parties agree, and I am satisfied, that pursuant to cl 6.2 - Earthworks - of the RLEP, the proposed earthworks and excavation will not have a detrimental impact on the soil stability or the amenity of the neighbouring uses. The amended DA includes design changes to minimise the extent of excavation in proximity to adjoining boundaries. These matters are further addressed in the Applicant's Geotechnical Technical Investigation Report (prepared by Geo-environmental Engineering, dated 4 and 10 October 2021). Conditions of consent have been imposed to ensure implementation of the report. 26. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.4 - Stormwater management - of the RLEP. The Applicant has prepared stormwater plans (prepared by Hyve Designs, dated 1 October 2021) addressing the matters for consideration set out in cl 6.4(3). Conditions of consent have been imposed to ensure implementation of the plans. 27. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.10 - Essential services - of the RLEP. The site is currently serviced for residential use and appropriate services exist for the purposes of the amended DA. 28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree the site has historically been used for residential purposes not associated with contamination. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. Accordingly, I am satisfied the amended DA addresses the matters outlined in cl 4.6 of SEPP Resilience and Hazards. 29. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX certificate dated 3 May 2022 has been submitted with the DA (as amended). Conditions of consent are imposed to ensure compliance with the BASIX certificate. 30. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, Peter Couvaras (NSW registered architect 7,344), has prepared a Design Verification Statement, fulfilling the requirements of cl 29 of the EPA Reg. 31. The parties agree, and I am satisfied, that the amended DA remains subject to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Consistent with cl 10(1)(c) of SEPP ARH, greater than 20% of the proposed gross floor area is to be allocated as affordable rental housing, (being units 1, 2 and 3), the resultant floor space ratio complies with cl 13(2) of SEPP ARH, and similarly, the amended DA complies with the 'do not refuse' provisions at cl 14(1) of SEPP ARH. 32. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 33. The Court notes that: 1. The Applicant has amended the DA with the consent of the Respondent. 2. The amended DA was uploaded to the NSW Planning Portal on 18 May 2022. 3. The Applicant has filed the amended DA with the Court on 20 May 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA/617/2021 and rely on the amended plans and documents listed at condition 1 of Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $6,800. 3. The Applicant's written request, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (RLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the RLEP, is upheld. 4. The appeal is upheld. 5. Consent is granted to Development Application DA/617/2021 (as amended) for the demolition of existing structures and construction of a part three-, part four-storey residential flat building, containing six apartments (including three affordable housing units), basement parking, landscaping and associated works at 33-35 Church Street, Randwick, NSW 2031, subject to the conditions of consent contained at Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (392697, 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: 02 June 2022