The Applicant filed the amended application with the Court on 23 August 2023.
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Orders:
The Court orders:
1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amendment of the development application in a sum of $6,000.00.
2. The Applicant's written request under cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) prepared by Planning Ingenuity dated 9 November 2022 seeking to vary the height in cl 4.3 of the RLEP is upheld.
3. The appeal is upheld.
4. Development consent is granted to development application No DA/580/2022 for a stage 2 construction of 3 x part 3 to part 4-storey residential flat buildings with 75 apartments, common basement level car parking for 117 cars, the partial removal of onsite vegetation and replacement landscaping at 11 Jennifer Street, Little Bay subject to the conditions of consent at Annexure A. The development also comprises the retention of Eastern Suburbs Banksia Scrub vegetation within the southern portion of the site.
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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: 22 September 2023
Parties
Applicant/Plaintiff:
Jennifer Street Developments Pty Ltd
Respondent/Defendant:
Randwick City Council
Cases Cited (2)
Jurisdictional Prerequisites
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.
I am satisfied that owners consent accompanied the development application.
The application was lodged to the Respondent on 15 November 2022. The Respondent notified the development application between 24 November 2022 to 8 December 2022. Five unique submissions were received, which have been considered by the consent authority.
A concept development application DA/698/2020 was granted consent by the Court in Auspat International No.2 Pty Ltd v Randwick City Council [2022] NSWLEC 1567 (concept approval). The proposed development is stage 2 of that concept approval, though I note references to 'stage 1' within the concept approval are to be read as references to this application.
Section 4.24(2) of the EPA Act requires that any further development application cannot be inconsistent with the concept approval. The parties agree and I accept on the basis of the approved plans and conditions of consent within concept approval DA/698/2020, that the amended application is consistent with the concept approval, its design principles and conditions of consent.
Randwick Local Environmental Plan 2012 (RLEP)
The subject site is zoned R3 Medium Density Residential pursuant to the Randwick Local Environmental Plan 2012 (RLEP), where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone:
• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
• To protect the amenity of residents.
• To encourage housing affordability.
• To enable small-scale business uses in existing commercial buildings.
Demolition requires consent pursuant to cl 2.7 of the RLEP, which forms part of the amended application.
Clause 4.3 Height of buildings of the RLEP applies, which allows a maximum height of 9.5m. The amended application exceeds the height limit, with an overall height of the southern building at 14.85m (a breach of 5.35m or 56.3%) and an overall height of the northern building at 14.65m (5.15m or 54.2%). The breaches relate to part of the buildings and lift overruns.
The parties agree and I acknowledge Commissioner O'Neill's decision of Karimbla Properties (No.59) Pty Limited v City of Parramatta [2023] NSLEC 1365. At [48] - [50], a cl 4.6 written request was found to not be required for a subsequent development application that was consistent with the concept approval through the operation of s 4.24(2) of the EPA Act.
For the abundance of caution, the application is also supported by a cl 4.6 written request authored by Planning Ingenuity dated 9 November 2022 (written request). The parties agree, and I am satisfied, that the written request justifies the contravention and that the proposed development is in the public interest for the following reasons:
The written request demonstrates that compliance with the height development standard is unreasonable or unnecessary in the circumstances of this case. The written request demonstrates that the objectives for height are achieved notwithstanding the contravention as:
The breach is compatible with the desired mixed future character of the area;
The breach is compatible with the adjoining heritage conservation areas;
The development maximises landscaping areas and decreased site coverage to conserve the ESBS Endangered Ecological Community, which has created the breach by pushing the building higher; and
The breach is consistent with the objective to not adversely impact on neighbouring properties with respect to visual bulk, privacy, overshadowing and views, as these impacts are from the compliant built form and not the breaches.
The written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard as the contravention is consistent with the concept approval and is in response to the reduced site coverage to conserve the ESBS Endangered Ecological Community, resulting in a higher building.
The contravention from the proposed development will be in the public interest as it is consistent with the objectives of the height development standard and I also consider that the proposed development is consistent with the zone objectives.
In accordance with 4.6(5), I have considered the provisions and am satisfied that the contravention will not infringe on those matters.
Accordingly, I am satisfied that the written request and proposed contravention to the height development standard is adequately justified in accordance with the matters set out in cl 4.6 of the RLEP.
As such, the Applicant's written request, pursuant to cl 4.6 of the RLEP, seeking to vary the development standard for height of buildings as set out at cl 4.3 of the RLEP, is upheld.
Clause 4.4 Floor Space Ratio (FSR) of the RLEP applies, which allows a maximum FSR of 0.75:1. The parties agree and I am satisfied, on the basis of the Statement of Environmental Effects prepared by Planning Ingenuity dated 9 November 2022 (SEE) and the Architectural Plans prepared by Hill Thalis dated 8 August 2023, that the amended development application complies with the FSR, with an FSR of 0.7:1.
Clause 5.10 Heritage Conservation of the RLEP applies to the site as it adjoins the Kamay Botany Bay National Park Conservation Area and the Prince Henry Hospital Conservation Area, both listed on the State Heritage Register. The application is accompanied by a Heritage Impact Statement prepared by Weir Philipps Heritage and Planning dated November 2022 (HIS). I have considered the HIS and SEE and accept the parties agreed evidence that the provisions of cl 5.10 of the RLEP have been adequately addressed, including appropriate conditions of consent at Annexure A.
Clause 6.2 Earthworks of the RLEP applies to the proposed development. I have considered the provisions of cl 6.2, the SEE, the Geotechnical Report prepared by SMEC Testing Services Pty Ltd dated May 2021 and the conditions of consent at Annexure A. I agree with the parties that the requirements of cl 6.2 Earthworks have been met.
Clause 6.4 Stormwater management applies to the site. The parties agree and I am satisfied that the provisions of cl 6.4 are met with consideration of the stormwater management plan prepared by Enscape Studio dated November 2022 and stormwater plans at Annexure A.
Clause 6.5 Terrestrial biodiversity apples to the site. I have considered the Ecological Letter dated 4 April 2023, Biodiversity Development Assessment Report dated 3 June 2022, and Bushfire Management Plan dated 26 April 2022, all authored by Keystone Ecological. I agree with the parties that the provisions of cl 6.5 have been satisfied.
Clause 6.10 Essential services applies to the site. The parties agree and I am satisfied with consideration of the documentation and conditions of consent at Annexure A that the provisions have been met.
Clause 6.11 Design excellence applies to the proposed development. I have had regard to the SEE, amended design verification statement (DVS) and SEPP 65 Design Quality Statement completed by registered architect Mr Philip Thalis and agree with the parties that the provisions of cl 6.11 have been adequately addressed.
Clause 6.12 requires the preparation of a development control plan and applies to the site. The parties agree and I accept that the concept approval satisfies this requirement in accordance with s 4.24 of the EPA Act.