D-Studio Architects v Randwick City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 4.56, 8.9
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 100, 113
Randwick Local Environmental Plan 2012, cl 4.4
State Environmental Planning Policy (Housing) 2021, s 147

Category: Principal judgment

Parties: D-Studio Architects Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
V Conomos (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/173248

Publication restriction: Nil

JUDGMENT

1. COMMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in respect of an application pursuant to s 4.55(8) to modify Development Application DA/208/2024 for demolition of existing structures and the construction of a five and a nine storey shop top housing development separated by a central through site link with ground floor commercial tenancies/SOHO units and residential dwellings on floors above. The approved development also includes two basement levels accommodating 41 car parking spaces, communal open spaces, removal of trees, amalgamation of existing lots, associated site and landscape works and is located at 6-10 Bowral Street, Kensington (Lots 1 and 2 in DP 130135, Lot 1 in DP 172438 and Lot 11 in DP 828574) (the site).

2. This matter commenced as a hearing however the parties, having reached agreement, requested that the matter be relisted as a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The request was granted and a conciliation conference, which I presided over, was held between the parties on 31 March 2026.

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to both parties. 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. The decision agreed upon is for the grant of modification application subject to conditions of consent in accordance with s 4.55(8) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of modification. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to ss 4.55(8) and 4.15(1) of the EPA Act.

5. The Court notes that Randwick City Council (the Respondent), as the relevant consent authority, approved under s 113(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) the amendment of Modification Application No DA/208/2024/A in accordance with the following documents:

6. Architectural plans:

| Plan | Drawn by | Dated | | A000 Rev 12 Title Page | D-Studio Architects Pty Limited | 22/08/2025 | | A005 Rev 12 Building Height Control Diagram | D-Studio Architects Pty Limited | 22/08/2025 | | A103 Rev 12 Floor 2 | D-Studio Architects Pty Limited | 22/08/2025 | | A104 Rev 12 Floor 3 | D-Studio Architects Pty Limited | 22/08/2025 | | A201 Rev 12 South Elevation | D-Studio Architects Pty Limited | 22/08/2025 | | A205 Rev 12 Internal East Elevation | D-Studio Architects Pty Limited | 22/08/2025 | | A400 Rev 12 FSR Calculations | D-Studio Architects Pty Limited | 22/08/2025 | | A403 Rev 12 Total Floor Area Calculations Option 1 | D-Studio Architects Pty Limited | 22/08/2025 | | A450 Rev 12 Adaptable Unit Layouts | D-Studio Architects Pty Limited | 22/08/2025 |

2. BASIX Certificate:

| BASIX Certificate No. 1737924M_04 prepared by Efficient Planet Pty Ltd | 22 January 2026 |

3. Revised letter of offer to enter into a voluntary planning agreement prepared by Landmax Kensington Pty Ltd dated 9 September 2025.

4. The amendment to the modification application arose as a result of the need to improve the amenity of units (A2.02 and A3.02) proposed to be dedicated to Council for the purposes of affordable housing.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its function (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted in accordance with s 4.56 of the EPA Act. I reach this conclusion as the amendments are minor relating to the satisfaction of the deferred commencement consent condition and include very minor amendments to the plans to improve the amenity of the proposed affordable housing units to be dedicated to Council. In particular, I note that the amendments to units A2.02 and A3.02, while resulting in a small increase in gross floor area (GFA), are wholly within the approved envelope of the building and will not result in any additional impacts as advised by the parties. I also note that the proposal as amended continues to comply with the maximum permissible floor space ratio in accordance with cl 4.4 of Randwick Local Environmental Plan 2012. Further, I note that the proposal continues to comply with the relevant provisions of State Environmental Planning Policy (Housing) 2021 including the matters listed at s 147.

6. The modification application was notified by the Respondent from 22 May 2025 for a period of 28 days. In response to the notification one submission was received. The parties have advised, and accordingly I accept, that the matters raised in the submissions have been considered in reaching agreement on the amended proposal.

7. Section 100(3)(a) of the EPA Reg requires a BASIX certificate if a modification application relates to BASIX development. A revised BASIX certificate (Certificate Number 1737924M_04) has been prepared by Efficient Planet Pty Ltd dated 22 January 2026.

8. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.56 and 4.15(1) of the EPA Act.

10. The Court orders that:

11. The appeal is upheld.

12. Development consent DA/208/2024 for demolition of existing structures and construction of a five and a nine storey shop top housing development separated by a central through site link with ground floor commercial tenancies/SOHO units and residential dwellings on floors above, two basement levels accommodating 41 car parking spaces, communal open spaces, removal of trees, amalgamation of existing lots, associated site and landscape works at 6-10 Bowral Street, Kensington (Lots 1 and 2 in DP 130135, Lot 1 in DP 172438 and Lot 11 in DP 828574) is modified in accordance with the terms in Annexure A.

13. Development Consent No DA/208/2024 as modified by the Court is at Annexure B.

H Miller

Acting Commissioner of the Court

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Annexure A (318 KB, pdf)

Annexure B (904 KB, pdf)