Land and Environment Court New South Wales Medium Neutral Citation: Charalambous v Randwick City Council [2022] NSWLEC 1515 Hearing dates: Conciliation conference held on 31 May 2022, 20 June 2022, 8 July 2022, 4 August 2022 and 16 August 2022, final agreement filed on 19 August 2022 Date of orders: 21 September 2022 Decision date: 21 September 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA/781/2021 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 $6,127.50. (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 Applicant's written request, pursuant to clause 4.6 of the RLEP, seeking to vary the development standard for minimum landscaped area as set out at s 18 of the State Environmental Planning Policy (Housing) 2021, is upheld. (5) The appeal is upheld. (6) Consent is granted to Development Application DA/781/2021 (as amended) for the demolition of existing structures and construction of a 4-storey residential flat building comprising 6 units (2 affordable), basement car parking for 8 vehicles, landscaping, and associated works at 29 Byron Street, Coogee, 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 – minimum landscaped area – 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, 5.10, 5.21, 6.1, 6.2, 6.4, 6.10 State Environmental Planning Policy (Infrastructure) 2007, cll 101, 102 State Environmental Planning Policy (Housing) 2021, cll 18, 19 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 2022) NSW Department of Planning and Environment (July 2015) Apartment Design Guide Category: Principal judgment Parties: Constantinos Charalambous (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): 2022/30700 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/781/2021 (the DA) by Randwick City Council (the Respondent). The DA sought consent for the demolition of the existing structures and construction of a four-storey residential flat building comprising 8 apartments as an Affordable Housing scheme with basement parking at 29 Byron Street, Coogee (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 May 2022, 20 June 2022, 8 July 2022, 4 August, and 16 August 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 an 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 similar in many aspects as the original proposal, a series of design changes have cumulatively resolved the contentions raised by the Respondent, which in turn related to floor space ratio exceedance, building height, building setbacks and separation, landscape area, 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 significant break in the centre of the building form. The amendments also bring with them a reduction in the total number of dwellings, reducing from 8 to 6, with a corresponding reduction in privacy and overshadowing impacts upon neighbouring properties, along with improvements to the internal residential amenity. The total gross floor area has also 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 original DA was publicly notified from 20 January 2022 to 4 February 2022. Forty-six unique submissions were received by the Respondent along with a petition containing thirty-three signatures. Additionally, a number of affected residents provided oral evidence at the commencement of the s34 conciliation conference on 31 May 2022. The issues raised in these submissions are concerns for overdevelopment, excessive excavation, traffic congestion and safety, excessive height of building, privacy and cross viewing, overshadowing, inadequate building setbacks and insufficient landscaped area, amongst other concerns. 11. The amended DA was re-notified from 21 July 2022 to 4 August 2022. A total of thirteen further written submissions were received in response to that notification. 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)(d) of the EPA Act has been appropriately addressed. 12. The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is the relevant local 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. 13. 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 12m for the site. 14. 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. 15. 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. 16. 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. 17. Consequently, the Applicant has provided a written request (prepared by aSquare Planning and dated 4 August 2022) seeking to vary the height of building development standard. 18. 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. 19. 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. 20. 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. 21. The amended DA exceeds the height of buildings development standard of 12m by approximately 1.307m, equating to an exceedance of 10.89% at its greatest extent. 22. 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 the rear portion of each of the two built components of form. The height exceedance will not create any discernible impacts beyond that of a building with a compliant height in terms of visual bulk, privacy, solar access and views and design amendments ensure the resultant composition is cohesive and not intrusive when viewed from surrounding public vantages points. 23. The parties agree, and I am satisfied, that the site is not located within the vicinity of any heritage items pursuant to cl 5.10 - Heritage conservation - of the RLEP. 24. 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. 25. 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, nor is the site within 500m of any land categorised as Class 1, 2, 3 or 4. 26. 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. These matters are further addressed in the Applicant's Geotechnical Report. Conditions of consent have been imposed to ensure the recommendations of the report are implemented. 27. 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 addressing the matters for consideration set out in cl 6.4(3). Conditions of consent have been imposed to ensure implementation of the plans. 28. 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. 29. 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. 30. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). Pursuant to cl 101 of the Infrastructure SEPP, the site is not within the relevant proximity of a classified road and therefore does not enliven this clause. Similarly, pursuant to cl 102 of the Infrastructure SEPP, the site is not situated adjacent to a road corridor with an annual average daily traffic volume of more than 20,000 vehicles and therefore does not enliven this clause. 31. 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 29 July 2022 has been submitted with the DA (as amended). Conditions of consent are imposed to ensure compliance with the BASIX certificate. 32. 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, Brian Meyerson (NSW registered architect 4,907), has prepared a Design Verification Statement, fulfilling the requirements of cl 29 of the EPA Reg. The Design Verification Statement describes how the amended DA meets the design quality principles of SEPP 65 and the objectives of the relevant criteria of the Apartment Design Guide. 33. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). The amended DA complies with all of the non-discretionary development standards prescribed by SEPP Housing with the exception of the landscaped area pursuant to s 18(2)(c) which fixes a minimum standard of 30% of the site area. Pursuant to cl 4.6 of the RLEP the Applicant has provided a written request (prepared by aSquare Planning and dated 11 August 2022) seeking to vary this development standard. 34. 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. 35. 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. 36. 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. 37. The parties agree, and I am satisfied, the Applicant's written request adequately justifies the variance to the landscaped area development standard for the following reasons. 38. The amended DA falls below the minimum landscaped area development standard of 30% by approximately 50sqm, resulting in a total landscaped area equivalent to 21.39% of the site area and representing a variance to the development standard of 29%. 39. 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. 40. The DA has been amended to resolve the landscape contentions previously raised by the Respondent. The parties agree, and I am satisfied, that compliance with the development standard is unreasonable and unnecessary in this instance as the development will be situated within a suitable landscape setting. Additionally, the landscape plans accompanying the amended DA demonstrate that adequate deep soil planting is to be provided at the rear of the site to allow for the retention of a significant existing tree, and additional areas are provided above basement structures, which are to be landscaped. 41. The parties agree, and I am satisfied, that the amended DA meets the requirements of s 19 of SEPP Housing and that the proposal is compatible with the character of the local area given that the four-storey built form is similar to the prevailing bulk and scale of surrounding developments. The proposal is also consistent with the building envelope controls envisaged by the RLEP, the highly articulated nature of the design and its materials will further ensure the development is contributory to the character of the local area. 42. 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. 43. 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 17 August 2022. 3. The Applicant has filed the amended DA with the Court on 19 August 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA/781/2021 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 $6,127.50. 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 Applicant's written request, pursuant to clause 4.6 of the RLEP, seeking to vary the development standard for minimum landscaped area as set out at s 18 of the State Environmental Planning Policy (Housing) 2021, is upheld. 5. The appeal is upheld. 6. Consent is granted to Development Application DA/781/2021 (as amended) for the demolition of existing structures and construction of a 4-storey residential flat building comprising 6 units (2 affordable), basement car parking for 8 vehicles, landscaping, and associated works at 29 Byron Street, Coogee, subject to the conditions of consent contained at Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (473248, 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: 21 September 2022