COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing backpackers' accommodation including internal reconfiguration, changes to the front façade, and a new second floor addition at 171 Arden Street, Coogee. The development application was lodged with the Council on 24 October 2022, and refused on 4 December 2023. The applicant appeals against that determination, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [0] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 August 2024. I presided over the conciliation conference.
Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.
The agreement was filed on 27 September 2024, following the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amended development application includes the provision of amended and additional architectural drawings with changes at the rear of the proposed addition to reduce impacts on neighbouring properties, a supplementary acoustic report and an amended plan of management.
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the history of the development application and the matters that the parties say are relevant to the question of whether the decision agreed upon is a decision "the court could have made in the proper exercise of its functions" (s 34(3) of the LEC Act).
I have considered the contents of the 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 s 4.15(1) of the EPA Act.
As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
The proposed development is for the purpose of a backpackers' accommodation, which is a form of tourist and visitor accommodation, which is an innominate permissible use in the E1 Local Centre zone in which the site is located, pursuant to the Randwick Local Environmental Plan 2012 (RLEP).
I am satisfied that consent can be granted notwithstanding the contravention of the floor space ratio (FSR) development standard. The development standard establishes a maximum FSR of 1.5:1, pursuant to cl 4.4 of the RLEP. The proposed development has a FSR of 1.96:1, which represents a breach of the maximum FSR by 30%, with additional floor space of 121.75m2. In accordance with the former wording of cl 4.6(4)(a) of the RLEP that applies to the development application, I am satisfied that the written request, lodged pursuant to cl 4.6 of the RLEP, adequately establishes sufficient environmental planning grounds that justify the breach by demonstrating that the breach allows the building to have a footprint and bulk that is consistent with the built form of adjoining and neighbouring development, and that achieves consistency in the streetscape. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.
The proposed development complies with the height development standard in cl 4.3 of the RLEP.
Clause 6.4 of the RLEP concerns stormwater management. Based on the civil engineering plans dated August 2022, I am satisfied of the matters in cl 6.4(3).
Clause 6.7 of the RLEP concerns the foreshore scenic protection area and applies to the site. Based on the location of the site and the surrounding development, the proposed development will not be visually prominent as viewed from the coastline and I am satisfied of the matters in cl 6.7(3).
The development application was notified between 28 October 2022 and 11 November 2022. I have considered the issues raised in the submissions made in that notification period.
Having reached the state of satisfaction that the decision is one that the Court could have made 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)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The Court notes that Randwick City Council as the relevant consent authority, has approved, under s 38(1) of the EPA Regulation, the applicant amending Development Application DA/525/2022 in accordance with the following documents:
Item Date
Architectural Drawings, prepared by Mostaghim (project 21010)
• A-00, cover sheet, drawing list & project summary, rev H
• A-01, proposed site plan/site analysis, rev F
• A-02, existing/demolition ground floor plan, rev E
• A-03, existing/demolition level 1 plan, rev E
• A-04, existing/demolition roof plan, rev E
• A-05, proposed ground floor plan, rev G
• A-06, proposed level 1 plan, rev G
• A-07, proposed level 2 plan, rev G
• A-08, proposed roof plan, rev G
• A-09, proposed west elevation, rev F
• A-10, proposed south elevation, rev F
• A-11, proposed north elevation, rev G
• A-12, proposed east elevation, rev G 16/9/24
• A-13, long section, rev G
• A-14, cross section, rev G
• A-15, existing GFA plans, rev E
• A-16, proposed gfa plans, rev H
• A-17, perspective view 1, rev E
• A-18, shadow diagrams, rev E
• A-19, height plane diagram, rev F
• A-20, 182 Arden st view loss analysis diagram, rev E
• A-21, materials and finishes details, rev F
• A-22, street elevation, rev D
• A-23, sun eye diagram 21st June sheet 1, rev F
• A-24, sun eye diagram 21st June sheet 2, rev F
• A-25, sun eye diagram 21st June sheet 3, rev D
• A-26, sun eye diagram 21st June sheet 4, rev D
View from to Unit 15 182 Adren St Sunroom (Proj 21010), prepared by Mostaghim 1 July 2024
View from unit 6 Arden St Living Room (Proj 21010), prepared by Mostaghim 1 July 2024
Clause 4.6 variation request (FSR), prepared by Planning Ingenuity Sept 2024
Supplementary Acoustic Report (220257), prepared by Pulse White Noise Acoustics 18/9/2024
Plan of Management (Ref M210280), prepared by Planning Ingenuity 17/9/2024
[2]
Orders
The Court orders that:
1. The Applicant's written request, prepared by Planning Ingenuity dated September 2024, made pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (NSW) (the 'RLEP') seeking a contravention of the maximum floor space ratio standard in clause 4.4 of the RLEP is upheld.
2. The appeal is upheld.
3. Development Application DA/525/2022 for alterations and additions to the existing backpackers' accommodation, including internal reconfiguration, changes to the front façade and a new second floor addition is determined by the grant of consent subject to the conditions in Annexure A.
4. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent costs thrown away as a result of amending the application in the sum of $7,400 within 28 days of the date of this order.
[3]
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: 01 October 2024