18 Dolphin Street Pty Ltd v Randwick City Council [2021] NSWLEC 1294

Catchwords: MODIFICATION APPLICATION – multi dwelling housing – car stackers – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 18 Dolphin Street Pty Ltd v Randwick City Council [2021] NSWLEC 1294 Hearing dates: Conciliation conference on 27 April 2021 and 12 May 2021 Date of orders: 27 May 2021 Decision date: 27 May 2021 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court Orders: (1) The applicant be granted leave to rely on the plans described in condition 1 of annexure ‘A’ . (2) The appeal is upheld. (3) Development Application no. DA/371/2019/A for the modification of the approved development including reconfigured basement to accommodate car stackers, increased floor area at Level 2 towards the east, general layout changes and changes to façade is approved subject to the conditions contained at Annexure ‘A’. Catchwords: MODIFICATION APPLICATION – multi dwelling housing – car stackers – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.55, 8.11 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.8, 6.9 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: COVID-19 Pandemic Arrangements Policy, Land and Environment Court (April 2021 ) Randwick Development Control Plan 2013 Category: Principal judgment Parties: 18 Dolphin Street Pty Ltd (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): 2021/15833 Publication restriction: No Judgment COMMISSIONER: This is an appeal brought to the Court under s 8. 11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Randwick City Council (Council) of Modification Application DA /371 /20 19 /A (the M A) lodged pursuant to s 4.55 (2) of the EPA Act . In exercising the functions of consent authority on the appeal, the Court has the power to determine the M A pursuant to s 4. 55(3) of the EPA Act. The M A relates to a 827 .8m 2 parcel of land identified as Lot 6 Section 7 DP 678 at 18 Dolphin Street Randwick (the site). The MA modifies the development consent for the demolition of existing structures and construction of 6 x 3 storey multi dwelling housing units with roof terraces and basement, Council reference DA/371/2019, as approved by Council on 14 May 2020 ( the O riginal C onsent ). The M A , as submitted to the Council on 1 9 Octo ber 2020 , sought consent for an extension of the basement level to accommodate 5 additional car spaces , including 4 within 4 new car stackers ; amendments to the layouts and some windows of the above basement levels ; privacy treatment of some windows , and removal of the roof garden s . A full description of the changes is included in the Council ’ s Statement of Facts and Contentions (SOFC). The M A was notified between 28 Octo ber 2020 and 1 1 November 2020, with two submission s received during the exhibition period. On 19 January 2021 the Applicant lodged this Class 1 Application with the Court , and o n 17 Febru ary 2021 the Council filed its SOFC. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the s 34 conciliation conference held on 27 April 2021 and 12 May 2021 . Due to the Court ’ s COVID-19 Pandemic Arrangements Policy ( April 2021) (COVID-19 Policy) restrictions in place at the time, and as agreed between the parties, there was no site view . One oral submission by an objector was made prior to the commencement of the conference which was convened via Microsoft Teams. Amendments to the architectural plans prepared by EK Design Studio , dated either 7 or 2 8 April 2021, (the final plans) were made to address matters raised in the SOFC, concerns raised by Council during the s 34 conference and in the public submission s . On 6 May 2021 the parties advised the Court that they had reached an agreement in principle . O n 1 2 May 2021 a copy of th e s 34 agreement , draft conditions at Annexure A to the agreement, a set of the final plans and a revised BASIX Certificate were filed with the Court. Minor changes were then made to the s 34 agreement, draft conditions and the jurisdictional statement arising from the discussions at the adjourned s 34 conference on 12 May 2021 and the final agreement was filed on 13 May 2021. The main changes between the original plans filed with the Class 1 Application and the final plans the subject of the s 34 agreement are : At the basement level the waste room has been relocated and one of the car stackers has been removed . At the top-most level (Level 2) the terraces off the master bedrooms have been replaced by narrower (300mm wide) Juliet balconies . 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. 55 of the EPA Act to grant consent to the modification of the original DA . There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In oral submissions the parties identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. Satisfaction of jurisdiction Under s 4.55 of the EPA Act the Court must be satisfied that the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted , and before that consent as originally granted was modified (if at all). Satisfaction on this point enlivens the power of the Court to grant consent to the modification application. I a ccept the agreed position of the parties that the development as amended by the MA is substantially the same as th at approved under the Original Consent both in a quantitative and a qualitative respect . As amended the development has the same number of units, similar bulk and scale and building height. In relation to the Randwick Local Environmental Plan 201 2 ( R LEP) the relevant provisions have been considered as follows: The development is for the purposes of multi dwelling hous ing , which is permissible with consent in the R 3 Medium Density Residential Zone (R 3 Zone) and is consistent with the objectives of the R 3 Zone. The development involves minor building changes to those approved under the O riginal Consent , and none of those works exceed the 9.5m height of buildings development standard at cl 4.3 of the R LEP. The MA involves an increase in the Gross Floor Area of the development compared to the Original Consent, due in part to the inclusion of parking spaces in excess of the required number specified in the Randwick Development Control Plan 2013 (DCP). The development as modified has a floor space ratio (FSR) of 0.81:1 in excess of the maximum FSR of 0.75:1 at cl 4.4 of the RLEP. A s the application is for the modification of an existing consent the MA does not require consideration of a cl 4.6 request to vary the development standard . The impacts of the additional floor space , have , however , been considered and the parties agree that notwithstanding the additional FSR the development satisfies the objectives of the FSR control at cl 4.4 of the RLEP and meets the requirements under s 4.15(1) of the EPA Act . The site is not identified as a heritage item, is not located within a heritage conservation area and is not within the vicinity of heritage items . The provisions of cl 5.10 of the R LEP are therefore not relevant to the application . The site is not shown on the Acid Sulfate Soils Map for the purposes of cl 6.1 of the RLEP , is not shown on the Flood Planning Map for the purposes of cl 6. 3 , and is not shown on the Key Sites Map for the purposes of cll 6.8 and 6.9. With respect to cl 6.2 Earthworks of the RLEP , the excavation proposed is substantially the same as that approved in the Original Consent. The minor additional ex cavation required by the MA do es not raise any further earthworks issues and no further assessment is required in this respect . State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55), applies to the land and cl 7 requires consideration of any contamination and associated remediation. This was also addressed as part of Council ’ s consideration of the original DA and the parties agree no further assessment is required as a result of the M A. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a revised BASIX Certificate number 1 0 16052M_03 dated 06 May 2021 has been provided demonstrating compliance with the BASIX SEPP, and is referenced in the conditions of consent. The remaining matters in s 4.15 (1)(b) – ( c ) of the EPA Act have bee n taken into consideration by the parties , as have the submissions of objectors and the public interest (s s 4.15(1)(d) – (e) of the EPA Act) . The conditions as agreed between the parties are lawful having regard t o the provisions of ss 4.16 and 4.17 of the EPA Act and have addressed the amenity impacts raised in contentions in terms of privacy and overlooking. Disposal of proceedings in accordance with the parties’ decision 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 ’ agreement. The Court orders: The applicant be granted leave to rely on the plans described in condition 1 of annexure ‘A’ . The appeal is upheld. Development Application no. DA/371/2019/A for the modification of the approved development including reconfigured basement to accommodate car stackers, increased floor area at Level 2 towards the east, general layout changes and changes to façade is approved subject to the conditions contained at Annexure ‘ A ’. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (516123, pdf) Plan (426891, 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: 27 May 2021