Land and Environment Court New South Wales Medium Neutral Citation: Pacific Leaf Investments Pty Ltd v Randwick City Council [2022] NSWLEC 1727 Hearing dates: Conciliation conference 12 December 2022 Date of orders: 23 December 2022 Decision date: 23 December 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) Leave is granted to the Applicant to rely on the amended documentation listed at paragraph [8]. (2) The Applicant's written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (LEP 2012) seeking to justify contravention of the floor space ratio standard under clause 4.4 of LEP 2012 has been considered and the necessary satisfaction has been formed under cl 4.6(4) of LEP 2012. (3) The appeal is upheld. (4) The Applicant is to pay the Respondent's costs thrown away as a result of the amendments in respect of all amended plans and other documents in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $8,500.00. (5) Development Application No. 787/2021 for the demolition of existing three storey boarding house and garden sheds, and construction of proposed three storey multi-dwelling housing (6 townhouses with private entrances and associated landscape), one basement level carparking at 14-16 Botany Street, Randwick (Lot 7 DP 3033) is determined by the grant of consent subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION- demolition of existing boarding house, construction of new multi dwelling housing – amended plans and additional information – agreement between the parties – orders made. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 s 34 Randwick Local Environmental Plan 2012 cll 4.3, 4.4 4.6, 6.2, 6.4, 6.10 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021 ss 47, 48 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827 Texts Cited: Randwick Development Control Plan 2013 Category: Principal judgment Parties: Pacific Leaf Investments Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: M Sonter, (Solicitor) (Applicant) V McGrath, (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Randwick City Council (Respondent) File Number(s): 2022/93731 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an appeal pursuant to section 8.7(1) of the Environmental Planning and Assessment Act 1979 by the Applicant against the deemed refusal of their Development Application No. DA/787/2021. The development application seeks consent for demolition of existing structures, construction of a multi-unit housing development containing six dwellings with basement parking and associated landscape works. The development is proposed at 14-16 Botany Street, Randwick. 2. The Court arranged a conciliation conference between the parties on 26 July 2022 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), no agreement was reached, and that conciliation conference was terminated. 3. Following the conciliation conference, the Applicant amended the development application with the consent of Randwick City Council pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The amended development application has been uploaded to the NSW Planning Portal. Subsequent to the Court granting leave to the Applicant to rely on the amended development application the parties have engaged in further without prejudice discussions and agreed on some further minor amendments to resolve the matters in dispute. 4. At the request of the parties a further conciliation conference was listed on 12 December 2022. I presided over that conciliation conference. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. That decision agreed upon is for leave to be granted to amend the development application and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. Owner's consent has been given to the Applicant for lodgement of the development application, 2. The development application was notified by Randwick Council from 17 January 2022 for 14 days. Nine (9) unique submissions were received, with eight (8) of these objecting to the proposal and one (1) submission in support. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. 3. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation the development is BASIX affected development. The development application is accompanied by the required BASIX certificate. 4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) prior to the grant of consent I am required to consider whether the land is contaminated. The Applicant has provided evidence that the subject site has been in residential use since its original subdivision. I am satisfied on the basis of the longstanding residential use of the site it is unlikely to be contaminated and is suitable for the proposed use. 5. The development application is subject to the provisions of Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). The proposed development seeks consent to remove 5 trees on the site. The removal of these trees has been assessed by the Arboricultural Impact Assessment and Tree Protection plan. I have reviewed the documents comprising the development application, considered the requirements of Part B5- Preservation of Trees and Vegetation in Randwick Development Control Plan 2013 and I am satisfied that the development is consistent with Ch 2 of SEPP BC. 6. State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the development application. As the development application proposes the demolition of an existing boarding house which is currently in use, the proposed development is subject to an assessment under ss 47 and 48 of SEPP Housing. The Applicant has provided a detailed planning response to each of the matters listed at subs (2) of s 47 of SEPP Housing. Further, the Applicant has provided evidence that, applying the standard in s 47(4) and the methodology at s 48(4) of SEPP Housing, that the existing development is not financially viable. In determining the development application, I have taken into account the Guidelines to the Retention of Existing Affordable Rental Housing and the matters listed at subs (2) of s 47 of SEPP Housing and I am satisfied that the factors do not warrant refuse of the application. Finally, I am satisfied a contribution is not warranted pursuant to s 48(3) of SEPP Housing. 7. The Randwick Local Environmental Plan 2012 (LEP 2012) applies to the subject site which is zoned R3- Medium Density Residential. The proposed use, multi dwelling housing is permissible in the zone. 8. The proposed development complies with the maximum height standard at cl 4.3 of LEP 2012. 9. Pursuant to cl 4.4: Floor Space Ratio (FSR) the site is subject to a maximum FSR control of 0.75:1. The amended architectural plans propose a maximum FSR of 0.82:1. The Applicant has prepared a written request seeking to vary the FSR development standards. I have read the written request prepared by ABC Planning Pty Ltd dated August 2022 and in accordance with cl 4.6 of LEP 2012, I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the standard are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2012): Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827. I am satisfied that the development is consistent with the achievement of the objectives of the standard listed at cl 4.4 of LEP 2012 for the reasons detailed in the written request. 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2012). In particular, I am satisfied that the variation to the standard is consistent with the height of the existing building and assists the proposed dwelling to achieve contextual fit in the locality which is dominated by three storey residential flat building. 3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.4 of LEP 2012 and the objectives of the R3 - Medium Density Residential. 4. Pursuant to cl 4.6(5) of LEP 2012, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 5. I find that the states of satisfaction required by cl 4.6 of LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the development standard. 1. Pursuant to cl 6.2: Earthworks of LEP 2012, the development application proposes earthworks to create the proposed basement car parking level. A Geotechnical Investigation report was prepared to accompany the development application which concludes that, subject to conditions, the site is suitable for the proposed excavation. Those conditions are incorporated in Annexure A. As required by cl 6.2: Earthworks of LEP 2012 in determining the development application I have given consideration to the matters listed at sub cl (3). In giving consideration to these matters, I have been informed by the geotechnical report prepared by the Applicant and the proposed development consent conditions. I am satisfied that none of the factors listed at sub cl (3) warrant the refusal of the application. 2. As required by cl 6.4: Stormwater Management I am satisfied of the matters listed at sub cl (3). In reaching this state of satisfaction I have been informed by the stormwater management plans that have been prepared as part of the development application. 3. Pursuant to cl 6.10: Essential Services the survey included in the development application identifies that the relevant services are currently available to the site and the development. 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that Randwick City Council as the relevant consent authority, has agreed under cl 55(1) of the EPA Regulation to the applicant amending their development application and to rely on the amended plans and documents listed below: Plan name Drawing Number Revision Date Prepared by Amended Architectural Plans Site Plan DA-101 F 12.12.22 Studio Johnston Site Analysis Plan DA-102 F 12.12.22 Studio Johnston Demolition Plan DA-103 F 12.12.22 Studio Johnston Ground Level Plan DA-110 F 12.12.22 Studio Johnston Level 1 Plan DA-111 F 12.12.22 Studio Johnston Level 2 Plan DA-112 F 12.12.22 Studio Johnston Roof Plan DA-113 F 12.12.22 Studio Johnston Basement 1 Plan DA-114 F 12.12.22 Studio Johnston North and East Elevation DA-200 F 12.12.22 Studio Johnston South and West Elevation DA-201 F 12.12.22 Studio Johnston Streetscape Elevation - Botany Street DA-202 F 12.12.22 Studio Johnston Section AA + BB DA-300 F 12.12.22 Studio Johnston Driveway Section DA-301 F 12.12.22 Studio Johnston Stairway Section DA-302 G 13.12.22 Studio Johnston GFA Diagrams DA-700 F 12.12.22 Studio Johnston SEPP65 Sun Diagrams DA-740 F 12.12.22 Studio Johnston SEPP65 Ventilation Diagrams DA-741 F 12.12.22 Studio Johnston Materials Sample Board DA-800 F 12.12.22 Studio Johnston Fence Types DA-801 F 12.12.22 Studio Johnston Supporting Documentation Document Name Date Updated BASIX Certificate prepared by EPS 14 December 2022 Updated Rental Yield Assessment prepared by Property Logic November 2022 Affordable Rental Housing - Clause 47 Assessment (SEPP Housing 2021) prepared by ABC Planning October 2022 Updated Quantity Survey Report prepared by Archi-QS 21 November 2022 1. The amended development application documents listed above were lodged on the NSW planning portal on 16 December 2022. The amended development application was filed with the Court on 12 December 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to rely on the amended documentation listed at paragraph [8]. 2. The Applicant's written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (LEP 2012) seeking to justify contravention of the floor space ratio standard under clause 4.4 of LEP 2012 has been considered and the necessary satisfaction has been formed under cl 4.6(4) of LEP 2012. 3. The appeal is upheld. 4. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments in respect of all amended plans and other documents in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $8,500.00. 5. Development Application No. 787/2021 for the demolition of existing three storey boarding house and garden sheds, and construction of proposed three storey multi-dwelling housing (6 townhouses with private entrances and associated landscape), one basement level carparking at 14-16 Botany Street, Randwick (Lot 7 DP 3033) is determined by the grant of consent subject to the conditions in Annexure A. D Dickson Commissioner of the Court ********** Annexure A 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: 23 December 2022