Beach Street Parseh Pty Ltd ATF Beach Street Parseh Unit Trust v Randwick City Council

Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015)
Randwick Development Control Plan 2013

Category: Principal judgment

Parties: Beach Street Parseh Pty Ltd ATF Beach Street Parseh Unit Trust (Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
A Knox (Solicitor)(Applicant)
V McGrath (Solicitor)(Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s): 2024/209782

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Randwick City Council’s deemed refusal of development application DA/923/2023 (the DA). The DA, as amended, seeks consent for the demolition of existing structures and construction of a four-storey residential flat building, including a basement car park, at 68 Beach Street, Coogee (the site).

2. At the request of the parties, the Court arrange a conciliation conference in relation to the matter under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 7 March 2025 and at which I presided. Prior to the conference, the parties indicated they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This agreed decision of the parties involved the Court upholding the appeal and granting development consent to the DA under s 4.16 of the EPA Act, subject to agreed conditions.

3. 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.

4. There are certain jurisdictional pre-requisites which require attention before a function of granting consent to the DA can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in a note to the Court received by email on 6 March 2025 and updated on 19 March 2025. The parties’ jurisdictional note explained how, in their opinion, jurisdictional matters have been or could be satisfied.

5. Mindful of the parties’ jurisdictional note and other evidence, I find as follows with regard to jurisdiction.

State Environmental Planning Policy (Resilience and Hazards) 2021

6. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. I accept the advice of the parties that the site has been in long term use for residential purposes, and that in such instances no further investigation in relation to contamination is required. The requirements of s 4.6 have been satisfied.

State Environmental Planning Policy (Housing) 2021

7. The DA is made mindful of the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). The parties advise that the in-fill affordable housing provision allowing bonus floor space ratio (FSR) under the Housing SEPP was amended on 14 December 2023, and now provides for a different calculation of bonus FSR. However, the parties advise, Schedule 7A, s 8(1) states that an amendment made to the Housing SEPP does not apply to a development application made, but not determined, on or before 14 December 2023. The current DA was made on 9 November 2023 and is therefore subject to s 17 of the Housing SEPP as applicable prior to 14 December 2023. Having regard to this, and according to the agreed advice of the parties, the proposal meets the definition of in-fill affordable housing, with 52% of the proposed gross floor area provided as affordable housing and, under Condition 6 to the agreed conditions, this affordable housing component is to be managed by a registered Community Housing Provider for a minimum of 15 years. Relevant here is that under s 17(3)(a) of the Housing SEPP, and reflecting the affordable housing component within the subject development, 0.5:1 would be added to the applicable maximum FSR under Randwick Local Environmental Plan 2012 (RLEP) cl 4.4.

8. Further, I note the parties’ advice that consideration has been given to Ch 4 of SEPP Housing (relating to design of residential apartment development) and that the parties are satisfied that the DA, as reflected in the final amendment, is satisfactory having regard to all relevant matters and objectives. In particular, the parties have considered:

9. the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9 of the Housing SEPP;

10. the Apartment Design Guide; and

11. the minutes/ advice of the Design Review Panel.

12. The parties advise of their opinion of satisfaction that the proposed development, as amended, is now acceptable with respect to Ch 4 of SEPP Housing. I accept this advice.

Randwick Local Environmental Plan 2012

10. Residential flat buildings are permissible within the applicable R3 Medium Density Residential zone under RLEP. I also note that demolition is permissible with consent under the provisions of cl 2.7.

11. The parties agree that the proposal complies with the applicable FSR control when the provisions of s 17 of SEPP Housing are factored in. The proposal breaches the relevant building height control which I will turn to below, at [16].

12. Under cl 6.1, the site is identified as being located within a Class 5 acid sulfate soils area and is within 500 m of adjacent Class 4 land that is below 5 m Australian Height Datum. However, the parties advise of specialist advice that the watertable is not likely to be lowered below 1 metre Australian Height Datum on the adjacent Class 4 land. I accept the advice of the parties that, accordingly, cl 6.1 is not enlivened.

13. Clause 6.2 is concerned with earthworks. The parties have taken me to the relevant matters for consideration, which they advise have been properly attended to.

14. Clause 6.4 is concerned with stormwater management. The parties have pointed out to me the proposal’s response to relevant factors here, noting the significant areas of deep soil proposed, proposed consent conditions and BASIX certificate requirements relating to alternative water supply systems. Based on the parties’ advice, in turn I am satisfied that the development, including through relevant conditions:

15. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water;

16. includes, as practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water;

17. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or to the extent that impact cannot be reasonably avoided, minimises, and mitigates the impact; and

18. incorporates, as practicable, water sensitive design principles.

19. Pursuant to cl 6.10, I note the site is in an established urban area and accept the advice of the parties that the following services are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access.

Building height contravention

16. As indicated earlier the proposal involves contravention cl 4.3 of RLEP relating to the height of buildings. In short, a maximum building height of 9.5 m applies, whereas the proposal involves a maximum height of 11.25 m. Clause 4.6 of RLEP provides for a pathway for the approval of development contravening such a development standard, subject to positive findings in relation to certain prerequisites certain prerequisites. Clause 4.6(3) is reproduced below:

Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

17. The DA is accompanied by a document, prepared by GSA Planning dated December 2024 and provided to the Court on 24 March 2024 (henceforth “the applicant’s document”), setting out the grounds on which the applicant seeks to demonstrate that the requirements of cl 4.6(3)(a) and (b) have been met. In its support for approval of the application, notwithstanding the building height contravention, Council submits that the applicant’s document is successful in that regard. As I explain below, I agree with Council that the applicant has demonstrated that the requirements of cl 4.6(3)(a) and (b) have been met.

18. The applicant’s document (p 3) indicates the extent of the height contravention in the following building height blanket diagram. See Figure 1.

Figure 1 - Building height blanket diagram (source: GSA Planning. December 2024, p 3).

19. The applicant’s demonstration that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case relies on the findings of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (‘Wehbe*’*). Among other points of justification, the written request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of cl 4.3 of RLEP, notwithstanding the contravention.

20. I reproduce the list of objectives of cl 4.3 below:

(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,

(b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,

(c) 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.

21. I agree with the Council that the applicant’s document adequately demonstrates these objectives are achieved through its explanation of the building design; including the recessing of certain building edges to minimise visual impact in the street and the generally set back and relatively small footprint of the height standard breach itself. The applicant’s document references Nos. 69 and 75 Beach Street, which are listed heritage items located across the road to the east of the site. I am advised that unlike the site and other properties on the western side of Beach Street, the properties on the eastern side of Beach Street including the listed heritage items fall within the low density R2 zone under RLEP. I accept the explanation in the applicant’s document that the development is compatible with these heritage items, given the zone, and thus character, interface which already exists. The applicant’s document works through to some level of detail matters relating to visual bulk (especially in consideration of the first development standard objective), loss of privacy, overshadowing and view loss and why the proposal is reasonable in that respect. I note that Council accepts these arguments. I find the arguments are persuasive that the development would not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.

22. The applicant also has demonstrated to my satisfaction that there are sufficient environmental planning grounds to justify the contravention of the development standard, in this instance. One key point here is that the contravention is, significantly, due to the sloping topography of the site (for example while the lift overrun balustrade exceed the height standard, the rear portion of the roof is located well below the 9.5 m height line). Another is that the overall design is compatible the site context (again noting the relatively low scale character of the breach, as indicated in Figure 1).

Remaining considerations under section 4.15(1) of the Environmental Planning and Assessment Act 1979

23. Randwick Development Control Plan 2013 applies, but jurisdictionally, nothing turns on this policy instrument.

24. The parties advise the proposal was notified in accordance with requirements. Copies of submissions were provided to the Court and I had the opportunity to read and consider the submissions noting in particular those from the neighbours on either side, including more recent submissions mindful of the final plan amendments. I sought explanations from the parties as to how these submissions had been responded to. The parties explained to me various changes which had been included which in the agreed position of the parties reasonably addressed the concerns raised. It is clear that, notwithstanding the amendments, concerns remained from these immediate neighbours. Objecting submission have been taken into consideration in accordance with the requirement of s 4.15(1)(d) of the EPA Act, which is the extent of the jurisdictional test before me here in this judgement relating to an agreement between the parties.

Conclusion

25. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

26. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

27. The Court notes that:

28. Randwick City Council as the relevant consent authority for the purposes of section 38(1) of the Environmental Planning and Assessment Regulation 2021 approves the amendment to the Development Application DA/923/2023 to rely on the following amended plans and documentation:

(a) Architectural drawings as follows:

| Plan | Drawn by | Dated | Received by Council | | DA1001 – Site Analysis Plan – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA1004 – Site and Roof Plan – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA1101 – Basement Plan – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA1102 – Ground Floor Plan – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA1103 – First Floor Plan – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA1104 – Second Floor Plan – Rev # | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA1105 – Third Floor Plan – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA2001 – North Elevation Sheet 1 – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA2002 – South Elevation Sheet 2 – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA2003 –East Elevation Sheet 3 – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA2004 – West Elevation Sheet 4 – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA3001 – Sections Sheet 1 – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA3002 – Sections Sheet 2 – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA3004 – North façade louvres – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA3005 – South façade louvres – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 | | DA6001 – Finishes Schedule – Rev G | Orosi Architecture | 20/01/2025 | 22/01/2025 |

(b) BASIX Certificate number 1207455M_08; (c) Clause 4.6 Variation Request relating to height of buildings prepared by GSA Planning dated December 2024; (d) Clause 4.6 Variation Request relating to Solar Access under cl 18(2)(e) of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) dated November 2024; and (e) Design Verification Statement prepared by Orosi dated 20 January 2025.

Orders

28. The Court orders that:

29. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $25,000.

30. The appeal is upheld.

31. Development Application DA/923/2023 for demolition of existing structures and construction of a four-storey residential flat building comprising six apartments, a basement carpark and ancillary landscaping works at 68 Beach Street, Coogee is determined by the grant of development consent subject to the conditions at Annexure A.

P Walsh

Commissioner of the Court

Annexure A (511589, pdf)

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