Land and Environment Court New South Wales Medium Neutral Citation: Mok v Randwick City Council [2022] NSWLEC 1683 Hearing dates: Conciliation conference held on 23 November 2022 Date of orders: 07 December 2022 Decision date: 07 December 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 in relation to the development standard at clause 4.4 of the Randwick Local Environmental Plan 2012 (floor space ratio) prepared by ABC Planning Pty Ltd dated November 2022 is upheld. (2) The request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 in relation to the development standard at clause 30(b) (Division 3 Boarding Houses) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (standards for boarding houses) prepared by ABC Planning Pty Ltd dated October 2022 is upheld. (3) The applicant is to pay the respondent its costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,800 within 14 days of the making of these orders. (4) The Appeal is upheld. (5) Development application number DA/327/2020 for integrated development for alterations and additions to existing boarding house including construction of a garage with 1 x boarding room above at the rear, new service entry, refurbishment of existing boarding room to make accessible and associated works at 40 The Avenue, Randwick, is determined by granting development consent subject to the conditions in Annexure 'A'. Catchwords: DEVELOPMENT APPEAL – alterations and additions – boarding house – cl 4.6 written request to justify contravention of floor space ratio development standard – cl 4.6 written request to justify contravention of boarding room size development standard - heritage - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, ss34, 39 Randwick Local Environmental Plan 2012, cll 2,3, 4.4, 4.6, 5.10, 6.4 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 26, 27, 28, 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 cl 3 State Environmental Planning Policy (Housing) 2021, Sch 7A State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: Randwick Development Control Plan 2013 Category: Principal judgment Parties: Albert Mok (Applicant) Randwick City (Respondent) Representation: Counsel: G Hartley (Solicitor)(Applicant) V McGrath (Solicitor)(Respondent) Solicitors: Hartley Solicitors (Applicant) Randwick City Council (Respondent) File Number(s): 2022/148269 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA/327/2020 for integrated development for alterations and additions to an existing boarding house including construction of a garage with 1 x boarding room above at the rear, new service entry, refurbishment of existing boarding room to make accessible and associated works (the Proposed Development) at 40 The Avenue Randwick legally described as Lot 2 in DP14466 (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 23 November 2022. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. The parties advise the Court that their respective experts agree that all Contentions raised in the Statement of Facts and Contentions filed on 5 July 2022 (SOFAC) have been resolved by the preparation of: 1. amended plans dated 7 November 2022, and 2. agreed conditions of consent. 1. 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. 2. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) to vary two development standards. The parties explained how the jurisdictional prerequisites have been satisfied in an agreement statement which I have referred to as set out below. 3. The owner of the Site is Randwick Accommodation Pty Ltd ("Owner"). The Applicant is agent for the Owner as evidenced in the letter of consent dated 16 June 2020 filed with the Class 1 Application on 23 May 2022. 4. The Proposed Development was notified for thirty days from 22 July 2020 in accordance with the Respondent's Community Participation Plan. Eleven submissions were received and considered by the parties. Each of the amendments to the Proposed Development have been made in response to the concerns of the Respondent and objectors and result in a lesser environmental impact from the Proposed Development. The submissions of objectors are a relevant consideration under section 4.15(1)(d) of the EPA Act. Two objectors attended at the earlier s 34 conciliation conference in August 2022 before Commissioner Dickson and made oral submissions. The parties agree that the written and oral submissions of objectors have been taken into account and that the Proposed Development, as amended is responsive to those submissions. The parties advise that the following changes expressly address the concerns from objectors: 1. Internalisation of the stairway and deletion of the balcony; 2. Redesign of the presentation of the garage to the street; and 3. Incorporation in conditions of consent of recommendations contained in the Boarding House Noise Impact Assessment dated 5 September 2022 1. The RLEP is the relevant environmental planning instrument that applies to the Site which is zoned R3 medium density residential under the RLEP and development for the purposes of a boarding house is permissible in the Zone. 2. The objectives of the R3 Zone as listed in the RLEP are as follows: 1. To provide for the housing needs of the community within a medium density residential environment. 2. To provide a variety of housing types within a medium density residential environment. 3. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 4. 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. 5. To protect the amenity of residents. 6. To encourage housing affordability. 7. To enable small-scale business uses in existing commercial buildings. 1. Clause 2.3(3) of RLEP requires the Court to have regard to the R3 Medium Density Residential zone objectives when determining the DA. An assessment against those objectives can be found on page 12 of the Randwick Local Planning Panel (Public) Meeting Report dated 25 November 2021 which was provided to the Court. 2. The Land is subject to a maximum floor space ratio (FSR) development standard of 0.9:1. The proposed development, as amended, will have a total floor space ratio of 1:1. The Applicant relies on a written request pursuant to clause 4.6 of the RLEP dated November 2022 seeking to justify the contravention of the FSR development standard (FSR Written Request). 3. The FSR Written Request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case by explaining how the objectives of the FSR development standard in cl 4.4 of the RLEP are achieved by the Proposed Development at pages 9 to 11 of the FSR Written Request. 4. The FSR Written Request also adequately demonstrate that there are sufficient environmental planning grounds to justify contravening the FSR development standard summarised on page 12 of the FSR Written Request as follows: "Suitability of the infill nature of the built form with the predominant character of laneway development, with the subject site representing and anomaly Absence of visual bulk, shadow, privacy and view loss impacts Compatibility with the scale and character of development in the vicinity of the site Positive heritage outcomes Well-serviced nature of the site/area to sustain the additional FSR Improved quality and quantity of communal area and boarding accommodation." 1. The Court is satisfied that the applicant's FSR Written Request seeking to justify the contravention of the development standard in cl 4.4 of the RLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the RLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the R3 Medium Density Residential zone in which the development is proposed to be carried out. 2. The Site is withing Avonmore Terrace which is a state heritage listed item (SHR 00565). It is also listed as part of the locally heritage listed St Jude's Cemetery (I454 in the RLEP) and situated within the St Judes Heritage Conservation Area. An assessment of the impact of the DA on the heritage significance of the item and conservation area is provided in the Heritage Impact Statement at Tab 11 of the Class 1 Application and page 22 of the Assessment Report. The DA was referred to the NSW Heritage Council under the provisions of Integrated Development. The Heritage Council supports the DA subject to the General Terms of Approval included in the agreed conditions of consent (see condition 3 of the conditions of consent). The Court would be satisfied that the effect of the proposed development on the heritage significance of the relevant item and area have been considered. (Clause 5.10 of the RLEP) 3. Stormwater management plans were submitted to Council as part of the DA and filed with the Court (Tab 19 of the Class 1 Application). The Court is satisfied that the matters listed under cl 6.4(3) of the RLEP have been addressed. 4. The Proposed Development seeks to make alterations and additions to a boarding house and the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP (ARH)) applies as the development application was made on 14 July 2020 which is prior to the date of commencement of the State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)). The DA is subject to the savings provision under Schedule 7A of the SEPP (Housing). 5. Division 3 of SEPP (ARH) applies to the Land by operation of clause 26(c) and to the proposed development by operation of cl 27. The Proposed Development is permissible pursuant to cl 28 of the SEPP (ARH). 6. The Proposed Development's compliance with the 'must not refuse development standards' in clause 29 of the SEPP (ARH) is set out below as follows: 1. The Proposed Development exceeds the maximum FSR permitted for residential accommodation on the Land. (cl 29(1) – FSR.) The FSR Written Request has been considered above in this judgment. 2. The Proposed Development complies with the maximum height limit of 12m under the RLEP. (cl 29(2)(a) – Building Height). 3. No modifications are proposed for the existing landscape treatment of the front setback area and additional landscaping is proposed for the rear of the site. (cl 29(2)(b) – Landscaped Area). 4. The Proposed Development provides a communal living room at ground floor level. The Court is satisfied that the communal living room will receive 3 hours of solar access between 9am and 3pm in mid-winter. (cl 29(2)(c) – Solar Access). 5. The Proposed Development does not meet the requirement of this 'must not refuse development standard' to provide a private open space with an area of at least 20 m2 for the use of lodgers. The proposed private open space has an area of 17.2 m2. The remaining requirements of this 'must not refuse development standard' are satisfied as the proposed private open space has dimensions greater than 3m and no on-site accommodation for a boarding house manager is proposed. Despite the non-compliance, the Court is satisfied that the area proposed as a private open space for the use of lodgers is adequate and appropriate in the circumstances. (cl 29(2)(d) – Private Open Space). 6. The Proposed Development comprises 10 boarding rooms and requires two car parking spaces at a rate of 0.2 spaces per room. One parking space is proposed however the Court is satisfied that the noncompliance will not have a detrimental impact on the adjoining neighbours or the occupants of the boarding house as the area is serviced by public transport. (cl 29(2)(e) –Parking). 7. All boarding rooms will be compliant with the minimum room area required in cl 29(2)(f). Two single occupancy boarding rooms are proposed with a gross floor area of 12.1m2 (Bedroom 4b) and 14.7 m2 (Bedroom 7). Eight double boarding rooms are proposed with gross floor areas greater than 16m2. The existing bedroom 4b has a gross floor area of approximately 10m2 and does not comply with the minimum room areas required by clause 29(2)(f). It is proposed that the non-original dividing wall between rooms 4a and 4b be adjusted to address the deficiency of size of room 4b to comply with the required room size. 8. All rooms have a kitchenette and bathroom as permitted by clause 29(3). 1. The Proposed Development's compliance with all the relevant development standards in cl 30 of the SEPP (ARH) is set out below as follows: 1. The Development has more than 5 boarding rooms and a communal room is provided at ground floor level. (cl 30(1)(a) – Communal Room.) 2. The Proposed Development does not comply with the cl 30(1)(b) maximum room area development standard. Two boarding rooms will have a gross floor area slightly exceeding 25m2. Bedroom 8 will have a gross floor area of 27.26 m2 and Bedroom 10 will have a gross floor area of 26.49 m2. The Applicant relies on a written request pursuant to clause 4.6 of the RLEP to justifying the contravention of cl 30(b) of the SEPP (ARH). The Court is satisfied that the applicant's written request seeking to justify the contravention of the development standard in cl 30(1)(b) of the SEPP (ARH) has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the RLEP and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the R3 Medium Density Residential zone in which the development is proposed to be carried out. 3. No boarding room will be occupied by more than 2 adult lodgers by operation of the Plan of Management and conditions of consent. (cl 30(1)(c) – Restriction on Number of Room Occupants). 4. The Court is satisfied that adequate bathroom and kitchen facilities are provided for each lodger in each boarding room. (cl 30(1)(d) – Bathroom and Kitchen Facilities). 5. The Development is not capable of accommodating 20 or more lodgers. No boarding room or on-site dwelling for a boarding house manager is therefore required. (cl 30(1)(e) – Boarding House Manager). 6. Clause 30(1)(f) has been repealed. 7. The Development is located in the R3 Medium Density Residential zone so this provision does not apply. (cl 30(1)(g) - Commercial Zone). 8. The Development provides for 10 boarding rooms which requires 2 motorcycle spaces and 2 bicycle spaces. Two motorcycle spaces and ten external bike racks are provided under the DA at the rear. (cl 30(1)(h) – Motorcycle and Bicycle Parking). 1. An assessment of the compatibility of the design of the proposed development with the character of the local area is provided at page 38 of the Assessment Report. The Court would be satisfied that the compatibility of the proposed development with the character of the local area has been considered in accordance with cl 30A of the SEPP (ARH). 2. In relation to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the Respondent has considered whether the site is contaminated as set out on page 12 of the Assessment Report. The historical use of the site for residential purposes ensures that contamination is unlikely. The Court is satisfied that the considerations listed in s 4.6 have been addressed. 3. Pursuant to cl 3(1)(a) of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the required BASIX Certificate has been provided demonstrating compliance with the Policy and the conditions of consent require compliance with this certificate. 4. The relevant provisions contained in the Randwick Development Control Plan 2013 (RDCP) have been identified in the Assessment Report at pages 40-55. The Statement of Facts and Contentions filed 5 July 2022, provides the relevant RDCP provisions which the Respondent considered to be of concern. The RDCP provisions identified in the SOFAC are considered to be addressed by the amended DA. The Court is satisfied that the Proposed Development is consistent with the provisions in the RDCP. 5. The parties agree that development consent can be granted for the Proposed Development taking into consideration the matters in section 4.15(1)(b) – (e) of the EPA Act. 6. In considering the DA as amended and, in deciding whether to enter into a s 34 Agreement which will give rise to the grant of a development consent, the parties have had regard to the public interest, as required by s 4.15(1)(e) of the EPA Act and s 39(4) of the LEC Act. 7. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act for the reasons set out in this judgment. 8. 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. Notations: 1. The Court notes that: 1. the Applicant has amended Development Application No DA/327/2020 with the agreement of Randwick City Council (pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000) as the relevant consent authority to incorporate the following amended plans and additional information: 1. Architectural plans prepared by Sarah Blacker: Drawing No. Drawing Title Revision Date DA.00 COVERPAGE F 07.11.2022 DA.01 SITE ANALYSIS PLAN D 26.08.2022 DA.02 EXISTING GROUND FLOOR PLAN B 26.08.2022 DA.03 EXISTING FLOOR PLAN B 26.08.2022 DA.04 EXISTING FRONT + REAR ELEVATIONS C 26.08.2022 DA.05 EXISTING SIDE ELEVATIONS B 26.08.2022 DA.06 PROPOSED SITE + ROOF PLAN D 07.11.2022 DA.07 PROPOSED GROUND FLOOR PLAN F 07.11.2022 DA.08 PROPOSED LEVEL 1 + LEVEL 2 PLAN E 07.11.2022 DA.09 PROPOSED FRONT + REAR ELEVATIONS E 06.10.2022 DA.09.2 PROPOSED FRONT + REAR ELEVATIONS B 07.11.2022 DA.10 PROPOSED SIDE ELEVATIONS D 07.11.2022 DA.11 PROPOSED SIDE ELEVATION E 07.11.2022 DA.12 PROPOSED SECTIONS F 07.11.2022 DA.13 SCHEDULE OF FINISHES + MATERIALS B 29.08.2022 DA.14 PROPOSED STUDIO CEILING HEIGHTS B 26.08.2022 DA.15 ROOM 8 ENTRY ARCHWAY DETAIL B 07.11.2022 1. Clause 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) in relation to the development standard at clause 4.4 of the RLEP (floor space ratio) prepared by ABC Planning Pty Ltd dated November 2022. 2. Clause 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) in relation to the development standard at clause 30 (Division 3 Boarding Houses) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (standards for boarding houses) prepared by ABC Planning Pty Ltd dated October 2022. 3. Plan of Management, prepared by ABC Planning Pty Ltd, dated September 2022. 4. Boarding House Noise Impact Assessment, prepared by Acoustic Logic, dated 5 September 2022. 5. BASIX Certificate Number A382791_02 dated 10 November 2022 6. ("Amended Development Application") 1. the Amended Development Application was lodged on the NSW Planning Portal on 16 November 2022. 2. the Amended Development Application was filed at the Court registry on 17 November 2022. Orders: 1. The Court orders: 1. The request pursuant to clause 4.6 of the Randwick Local Environmental Plan in relation to the development standard at clause 4.4 of the Randwick Local Environmental Plan (floor space ratio) prepared by ABC Planning Pty Ltd dated November 2022 is upheld. 2. The request pursuant to clause 4.6 of the Randwick Local Environmental Plan in relation to the development standard at clause 30(b) (Division 3 Boarding Houses) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (standards for boarding houses) prepared by ABC Planning Pty Ltd dated October 2022 is upheld. 3. The applicant is to pay the respondent its costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,800 within 14 days of the making of these orders. 4. The Appeal is upheld. 5. Development application number DA/327/2020 for integrated development for alterations and additions to existing boarding house including construction of a garage with 1 x boarding room above at the rear, new service entry, refurbishment of existing boarding room to make accessible and associated works at 40 The Avenue, Randwick, is determined by granting development consent subject to the conditions in Annexure 'A'. E Espinosa Commissioner of the Court 148269.22 Annexure A (341018, pdf) 148269.22 Plan of Management (171378, pdf) 148269.22 Plans (6935741, pdf) ********** Amendments 08 December 2022 - Amendment made: update on coversheet in regards to hearing dates. 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: 08 December 2022