Charalambous v Randwick City Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Costa Charalambous (Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
A Pickles SC (Applicant)
J Ede (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/328755

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application 632/2024. The development application seeks consent for the demolition of the existing structures and construction of a six storey co-living development with basement parking, storage and services (DA) at 129 and 129A Barker Street, Randwick legally described as Lot 1 and 2 of DP 501835 and 1 Maud Street, Randwick legally described as lot 4, 5 and 6 of DP 1221.

Request for hearing adjournment and conciliation conference

2. The hearing commenced on site on 5 August 2025 where the Court heard from six objectors. After hearing from objectors, the parties advised the Court that based on the joint expert reporting and foreshadowed amendments to the DA, no issues remained in contention. On this basis, the parties requested a conciliation conference.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on the same day. The parties’ agreement was filed 5 August 2025.

4. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-632/2024 in accordance with the documents contained at Annexure B (amended DA).

5. 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 for the amended DA and granting development consent subject to conditions of consent.

6. 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.

Jurisdictional Prerequisites

7. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

8. 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.

9. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

10. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]). For the reasons set out below, 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.

11. I am satisfied that owner’s consent accompanied the development application, as the registered proprietor of each property is the Applicant. In addition, accompanying the DA is an executed consent from all directors of the company.

Community notification and objections

12. The Respondent notified the DA twice, between 1 August 2024 to 15 August 2024 and 20 June 2025 to 4 July 2025. Eighteen submissions were received from the first notification and thirteen submissions from the second notification. The Court heard oral submissions from six objectors, with many more present at the start of the original hearing.

13. Different from the consideration of the Court at a hearing, as the parties have entered into an agreement, the Court’s role is limited to ensuring that there is power to grant consent, and not to considering the merits of the issues raised (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [217]).

14. In reaching agreement, the parties have advised the Court that they considered the concerns raised in the written and oral objections and where possible, that these have been addressed.

Randwick Local Environmental Plan 2012

15. I accept the parties’ agreement that the identified preconditions to grant consent are satisfied as detailed below.

16. The site is zoned R3 Medium Density Residential. The proposed development for a co-living development is permissible in the zone. Pursuant to cl 2.3, the parties have had regard to the objectives of the zone as set out in the jurisdictional statement.

17. Clause 2.7 permits demolition with consent.

18. Clause 4.3 height of buildings applies to the site, with a maximum height of 19.5m. The amended DA seeks a variation to the height limit, with a maximum height of 20.236m as shown on the architectural plans prepared by Mark Shapiro Architects various dates (architectural plans) and stated in the cl 4.6 Exceptions to Development Standards – Height of Buildings prepared by GSA Planning dated 7 July 2025 (written request). The written request adequately demonstrates the grounds relied on to satisfy cl 4.6(3)(a) and (b).

19. Clause 4.4 floor space ratio (FSR) applies a maximum FSR of 1.8:1. However, s 68(2) of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) permits an additional 10% FSR for co-living, resulting in a maximum allowable FSR of 1.98:1. The parties detail in the jurisdictional statement and architectural plans (drawing DA9003) that the proposed FSR is 1.96:1, which complies with the allowable FSR for the development.

20. Clause 5.21 flooding applies to the site as the area is identified as a flood planning area. The DA is accompanied by a Flood Risk Management Plan prepared by Ky Tran April 2024, Flood Risk Assessment prepared by Acroyali Engineering dated 30 May 2025 and Floor Risk Assessment prepared by Acroyali Engineering 8 July 2025 (flood reports). The development proposes habitable living spaces above the freeboard level, will not divert flood levels to adjoining properties, is compatible with the flooding affectations, identifies evacuation routes and the ongoing flood water management is enforced through conditions of consent.

21. Clause 6.2 earthworks applies to the site. The DA was accompanied by two Geotechnical Reports prepared by Morrow dated 6 December 2023 and 22 May 2025 that addresses the provisions. Conditions of consent have been included at Annexure A relating to soil management, dilapidation reports, and damage to adjoining properties.

22. Clause 6.4 stormwater management applies to the development. On the basis of the documentation accompanying the amended DA, including the architectural plans, flood reports, stormwater plans prepared by Rebel Engineering (stormwater plans), and paragraphs 31-36 of the jurisdictional statement, I accept the parties’ agreement that the provisions have been satisfied.

23. Clause 6.10 essential services applies to the amended DA. The site is currently serviced by the requisite essential services and will continue to be under the amended DA, including proposed new driveway access.

24. Clause 6.11 design excellence applies to the proposed development. The SEE and jurisdictional statement set out how the proposed development satisfies the design excellence provisions. The Respondent details that they engaged the services of an urban designer who has considered that the provisions of 6.11(4) and that cl 6.11(3) has been satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. The requirements of Ch 2 do not apply as development consent is sought through the amended DA for the removal of eight trees, identified as trees 5 and 7-13.

State Environmental Planning Policy (Housing) 2021

17. As set out in the jurisdictional statement and demonstrated by the documentation accompanying the amended DA, the parties agree, and I accept that the identified preconditions to the grant of consent in Part 3 of the Housing SEPP are met.

18. The amended DA is consistent with the criteria of ss 68 and 69 as follows:

19. Clause 68(2)(a) – FSR – complies as previously stated.

20. Clause 68(2)(b) – N/A.

21. Clause 68(2)(c) – Communal Living Space – 182m2 of communal living space is required. The architectural plans demonstrate communal living space of 186.08 sqm that exceeds the minimum dimension of 3m (DA9004 Rev E).

22. Clause 68(2)(d) – Communal Open Space (COS) – a minimum of 20% COS or 262.36m2 in this instance is required. The architectural plans demonstrate 262.97m2.

23. Clause 68(2)(e)(i) – Carparking – the site is in an accessible area and the parking rate of 0.2 spaces per room applies. 16 spaces for the proposed 82 rooms are required. The amended DA provides 17 spaces.

24. Clause 68(2)(f) – Landscape – minimum landscape requirement in the zone is the amount required for multi dwelling housing under a relevant planning instrument. Plan DA9005 Rev E demonstrates that the minimum landscaping is provided in accordance with the controls for the Magill Street Housing Investigation Area (HIA).

25. Clause 69(1)(a) – floor space per room – as required by the Housing SEPP, all rooms do no exceed 25m2. All single rooms are at least 12m2 and all double rooms are at least 16sqm excluding the requisite areas, as shown on the architectural plans.

26. Clause 69(1)(b)(ii) – minimum lot size – the site exceeds 800m2.

27. Clause 69(1)(d) – the development contains a workspace for the manager as demonstrated by the architectural plans.

28. Clause 69(1)(f) – services – adequate kitchen, bathroom and laundry services are provided within the amended DA as shown on the architectural plans.

29. Clause 69(1)(g) – as detailed in the Plan of Management dated July 2025 and enforced by the conditions of consent at Annexure A, no room is permitted more than 2 lodgers.

30. Clause 69(1)(h) – bicycle and motorbike parking facilities are provided.

31. Clause 69(2)(a)(i) – the proposed setbacks comply with the setback requirements in the HIA.

32. Clause 69(2)(b) – the amended DA complies with the minimum building separation distances.

33. Clause 69(2)(c) - the north facing communal room receives three hours of solar access between 9am and 3pm on the winter solstice.

34. Clause 69(2)(f) – the proposed development is consistent with the desired future character of the area. The area is one undergoing transition with the recent implementation of the HIA.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. The provisions of s 4.6 apply to the site. The amended DA is accompanied by a Preliminary Site Investigation Report prepared by Environmental Consulting Services dated 28 August 2024 (PSI) which details that the site is suitable for the proposed use. The PSI states that there is no evidence that the nearby service station has contaminated the site or groundwater beneath the site. Materials inspected on site did not indicate hazardous materials. On this basis, the parties agree and I accept that s 4.6 has been satisfied. I note that the conditions relating to a potential detailed site investigation report and remedial action plan to address unexpected finds are not for the purposes of s 4.6, as the PSI does not identify any contamination on site. Standard conditions relating to further hazardous materials surveys prior to demolition have been included in the conditions of consent at Annexure A.

State Environmental Planning Policy (Transport and Infrastructure) 2021

20. Section 2.48 requires that a development near powerlines needs to be referred to the relevant authority. Ausgrid were notified and provided conditions which have been included in the conditions of consent at Annexure A.

Heads of consideration

21. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been adequately considered.

Conclusion

22. 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.

23. 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.

Orders:

24. The Court orders:

25. The appeal is upheld.

26. Development Application No. DA/632/2024 for the demolition of the existing structures and construction of a six-storey co-living development with basement parking, storage and services at 129 and 129A Barker Street, Randwick NSW and 1 Maud Street Randwick NSW is determined by the grant of consent subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

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(Annexure A) (705 KB, pdf)

(Annexure B) (189 KB, pdf)

Amendments

22 August 2025

file type amended.