Land and Environment Court New South Wales Medium Neutral Citation: Hassarati Finance Pty Ltd v Randwick City Council [2023] NSWLEC 1028 Hearing dates: Conciliation conference held on 20 January 2023 Date of orders: 24 January 2023 Decision date: 24 January 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) Leave is granted to the applicant to rely on the amended documentation listed in 'Annexure A'. (2) The amended written request made, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, filed on 20 December 2022, which seeks to vary development standard in clause 4.3 – Height, is upheld. (3) The appeal is upheld. (4) Development application DA/630/2021, as amended, seeking demolition of existing structures and construction of a six-storey shop-top housing development comprising ground floor retail and five levels above containing 23 student rooms, 8 boarding rooms and 1 manager room, communal areas, car parking spaces (4), landscaping and associated works on Lot 62 in Deposited Plan 7698, also known as 203-207 Anzac Parade, Kensington, is determined by the grant of consent, and subject to the conditions set out in 'Annexure A'. (5) The applicant is to pay the respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $7,300. Catchwords: DEVELOPMENT APPLICATION –mixed use - shop top housing - boarding house - breach in height development standards – cl 4.6 request for variation of standards - conciliation conference conciliation conference – 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 2000, cll 49, 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 29 State Environmental Planning Policy (Housing) 2021, Sch 7A State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021 Randwick Local Environmental Plan 2012, cll 2.3, 4.3, 4.6 Texts Cited: Randwick Development Control Plan 2013 Category: Principal judgment Parties: Hassarati Finance Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Norton Rose Fulbright (Respondent) File Number(s): 2022/134097 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal against deemed refusal of Development Application DA/630/2021 by the Randwick City Council (hereafter the Council), which as amended, seeks demolition of existing structures, and construction of a six storey mixed use, shop top housing development with commercial premises on the ground floor and a 32-room boarding house on the levels above, at Lot 62 in Deposited Plan (DP) 7698, also known as 203-207 Anzac Parade, Kensington, NSW (hereafter the site). Background 1. Development Application DA/630/2021 (the application) was lodged with Council on 13 October 2021, notified (with 8 written submissions received during the notification period), internally reviewed, and considered by the Council's Design Excellence Advisory Panel. 2. The applicant appealed against the deemed refusal, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), without an onsite view at the request of the parties, and held via Microsoft Teams. 4. The Council agreed for the applicant to amend the plans and documents that support and amend the application, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 5. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been resolved, and the issues raised by residents were considered. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application DA/630/2021, subject to conditions in Annexure 'A'. Jurisdictional prerequisites 1. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied: 1. Randwick Local Environmental Plan 2012 (RLEP): 1. Pursuant to cl 2.3 of the RLEP, the proposed residential development is situated over land zoned B2 Local Centre. The proposed development, as described to the Court, is permissible with consent. The amended application sufficiently addresses all the relevant objectives, aims, standards and provisions of the RLEP, except for a numerical breach of the height development standard, pursuant to cl 4.3. 2. The amended application relies on a cl 4.6 written request, seeking a variation of the non-compliant height as designed, pursuant to cl 4.6 of the RLEP. 3. With regards to the cl 4.6 written request seeking a height variation, it explains that the non-compliance of the height standard (of 21m) with a proposed maximum height of 21.95m (to the top of the lift overrun) does not result in a development that is incompatible with the character of the surrounding area, nor results in adverse amenity or heritage impacts. The proposed height variation will not perceptibly change the presentation of the building to the streetscape or result in adverse bulk/scale impacts to adjoining properties. According to the cl 4.6 written request, the proposed development is consistent with the B2 zone objectives in cl 2.3 of the RLEP and the (height) development standard objectives described in cl 4.3. 4. The Court must be satisfied to grant consent to the application that the cl 4.6 request to vary the development standard are appropriately assessed, pursuant to the requirements set out in cl 4.6 of the RLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request seeking variation of the height development standard sufficiently describes the environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (B2), as well as height (cl 4.3) standard. The breach in the development standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, and appropriately supports those utilising the site. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standards in this instance, and that there is no public benefit to maintaining the height standard for the proposed development. 5. I am satisfied that the requirements of cl 4.6 of the RLEP have been addressed, and that a variation of the cl 4.3 development standard should be granted. 1. EPA Reg: 1. The applicant has satisfied the Court with regards to consent of landowners relevant to the application, pursuant to cl 49. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. The amended application relies on a Preliminary Site Contamination Investigation, prepared by Geo-Environmental Engineering, dated 4 September 2022 and a Detailed Site Investigation, prepared by Geo-Environmental Engineering, dated 4 September 2022. 2. The Court is satisfied that the site is suitable for its intended use, and that that these documents together with conditions of consent address the relevant requirements of s 4.6 of the SEPP Resilience. 1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH): 1. Based on the date of the application submitted to Council, the savings and transitional provision under Sch 7A of the State Environmental Planning Policy (Housing) 2021, requires consideration of the proposed boarding house pursuant to the SEPP ARH. 2. The proposed boarding house satisfies the relevant provisions of the SEPP ARH, however, does exceed the maximum numerical height of 21m of the RLEP, required in s 29(2)(a) of the SEPP ARH. The non-compliance in the height provision is addressed by the cl 4.6 written request seeking a variation in the height development standard. The Court is satisfied that the requirements of cl 4.6 of the RLEP are addressed to vary the cl 4.3 height development standard, therefore s 29(2)(a) of the SEPP ARH is addressed. 1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure): 1. The site has a frontage to a classified road (being Anzac Parade), is located within 25m of the Sydney Light Rail corridor and is likely to require ground penetration deeper than 2m. Therefore, the requirements of SEPP Infrastructure are relevant for consideration. 2. Transport for NSW granted concurrence to the amended application, subject to general terms of approval, which are considered in the amendments made to the application and adopted in the conditions of consent described in Annexure A. The requirements of SEPP Infrastructure are addressed. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004: 1. The application is for a boarding house, and no BASIX certificate is required, pursuant to the SEPP BASIX. 2. However, to demonstrate the proposal's 'green star' requirements as requested by Council, a BASIX Certificate (1246065M_02) issued on 28 September 2022 and relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended application. 1. Randwick Development Control Plan 2013 (RDCP): 1. The relevant requirements of the RDCP are generally complied with, based on the amended plans, supporting documents to the amended application and the conditions of consent. The original application was publicly notified in accordance with the RDCP, and the Court is satisfied that the submissions received have been considered and assessed in Council's merit assessment. The amended application was renotified, and no written submissions were received. Grant of consent 1. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. 2. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions and potential for amenity impacts including solar access and privacy. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA/630/2021 be determined by the granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act. 4. 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. 5. The Court notes that: 1. Randwick City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA/630/2021 to rely upon the documents specified in 'Annexure A'. 2. The amended application has been lodged on the NSW planning portal on 20 December 2022 and filed with the Court on 20 December 2022. 1. The Court orders that: 1. Leave is granted to the applicant to rely on the amended documentation listed in 'Annexure A'. 2. The amended written request made, pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, filed on 20 December 2022, which seeks to vary development standard in clause 4.3 – Height, is upheld. 3. The appeal is upheld. 4. Development application DA/630/2021, as amended, seeking demolition of existing structures and construction of a six-storey shop-top housing development comprising ground floor retail and five levels above containing 23 student rooms, 8 boarding rooms and 1 manager room, communal areas, car parking spaces (4), landscaping and associated works on Lot 62 in Deposited Plan 7698, also known as 203-207 Anzac Parade, Kensington, is determined by the grant of consent, and subject to the conditions set out in 'Annexure A'. 5. The applicant is to pay the respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $7,300. Sarah Bish 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: 24 January 2023