Kingsford Parade Pty Ltd v Randwick City Council

Cases Cited: Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227; (2022) 254 LGERA 114
McMillian v Taylor [2023] NSWCA 183

Texts Cited: Randwick Council Community Participation Plan
Randwick Development Control Plan 2013

Category: Principal judgment

Parties: Kingsford Parade Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
A Boskovitz (Applicant)
J Corradini-Bird (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/328679

Publication restriction: Nil

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. These proceedings relate to a Modification Application No DA/731/2023/A (Modification Application) made directly to the Court pursuant to 4.55(8) of the Environmental Planning and Assessment 1979 (NSW) (EPA Act) for the modification of a Development Consent DA/731/2023 granted by the Court on 17 September 2024 (Consent).

2. The Consent approved a part 4, part 9 storey co-living housing development with ground floor retail and a single basement level containing parking, bicycle and motorbike parking and ancillary services at 311-315 Anzac Parade, Kingsford (Site). The proposed modifications are largely within the approved envelope, except for some minor changes to the building form consequent of the changed waste collection policy for Randwick LGA.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 5 December 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. The decision is recorded in the parties’ executed s 34 agreement filed on 19 December 2025.

4. 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. Relevantly, a Commissioner presiding over a conciliation conference is not required to make an independent determination on the merits: McMillian v Taylor [2023] NSWCA 183 at [4]-[6] (Kirk JA); [62]-[65];[67]-[80].

5. The constraint under s 34(3) of the LEC Act engages a consideration of any jurisdictional limitations on the power of the Court to make the orders sought.

6. In this case the parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the consent subject to agreed conditions. The jurisdictional preconditions to the exercise of that the power are addressed in the parties’ joint submission filed with the s 34 agreement. After a consideration of the submissions and the documents filed with the s 34 agreement and within the Class 1 appeal and relevant matters under s 4.15(1) of the EPA Act I am satisfied that there is no jurisdictional impediment to the orders sought in the s 34 agreement. In that regard I note the following.

Environmental Planning and Assessment 1979 (NSW) – s 4.55(2)

7. In disposing of the proceedings to reflect the agreement reached between the parties I have undertaken the comparative exercise mandated by s 4.55(2)(a) of the EPA Act and I am satisfied on the evidence that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all).

8. In this case, the following matters contribute to my conclusion that the development is substantially the same:

9. the Modification Application is largely a development within substantially the same envelope save for some minor modifications to the building form to manage policy changes to waste collection in the Randwick LGA, as well as other building and construction matters arising during design and construction stage of the development;

10. the height of the development has reduced minimising impacts;

11. there is additional gross floor area (GFA) however this additional GFA does not cause for the loss of any environmental amenity of adjoining neighbours including loss of views, privacy or additional overshadowing and is largely associated with the changes to waste facilities which has required changes to the communal living space on one of the buildings;

12. the amendments do not affect the understanding of the development from the street nor does not impact on the streetscape;

13. the development continues to propose commercial space on the ground floor presenting to Anzac Parade;

14. the extent of deep soil does not change on the Site but does have minor impacts on landscape area; and

15. the number of co-living rooms and their division between 1 bedroom and 2 bedroom remain the same.

16. Section 4.55(2) also requires as a prerequisite to the modification of a development consent confirmation that:

17. The consent authority (Council) has “…consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent” (s 4.55(2)(b)); and

18. that the Modification Application has been notified in accordance with the Regulation and a development control plan if the consent authority has made a development control plan that requires the notification or advertising of applications for modification of a development consent (s 4.55(2)(c)).

19. It is to be noted that there were no submissions and no speakers at the s 34 conciliation conference.

20. The Modification Application is integrated development, however the original DA was referred to the relevant authorities and there are no proposed modifications that require re-referral.

21. The Modification Application was notified in accordance with the Council’s Community Participation Plan between 11 September 2025 and 9 October 2025. No submissions were received.

22. Section 4.55(3) requires the consent authority to take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified (see Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227; (2022) 254 LGERA 114). The parties have taken into consideration the Court's original judgment determining to grant development consent.

23. The parties submit and I accept that the Modification Application can be approved having regard to the matters in section 4.15(1)(a)-(e) of the EPA Act because:

24. Section 4.15(a)(i): no relevant matters arise under the Randwick Local Environmental Plan 2012;

25. Section 4.15(a)(ii:) there is no proposed instrument that is or has been the subject of public consultation;

26. Section 4.15(a)(iii): the Council is satisfied that the Modification Application is acceptable on its merits having regard to the provisions of the Randwick Development Control Plan 2013;

27. Section 4.15(a)(iiia): no planning agreement relates to the Development Consent or Modification Application;

28. Section 4.15(b): the impacts of the Modification Application are acceptable;

29. Section 4.15(c): the Site is already subject to the Development Consent and is therefore considered suitable for the development the subject of the Modification Application which remains substantially the same; and

30. Section 4.15(e): the public interest has been considered in assessment of the Modification Application.

Randwick Local Environmental Plan 2012

Clause 5.10 – Heritage Conservation

15. In respect of cl 5.10 of the Randwick Local Environmental Plan 2012 (LEP), the parties submit and I accept that that the matters in clause 5.10(4) do not preclude the approval of the application. There are no changes to the elevation which might cause for a reconsideration of heritage issues.

Clause 6.4- Stormwater

16. In respect of cl 6.4 stormwater management, the parties agree that the Court can be satisfied that those matters arising in cl 6.4 have been considered as part of the assessment of the Final Plans.

17. The Court notes that;

18. the Stormwater Plans submitted with the Modification Application provide details about the provision of on-site detention;

19. there are adequate permeable areas to allow for onsite collection of stormwater and rainwater;

20. there is a sediment control plan to deal with runoff and the protection of the environment; and

21. there is the provision of a rainwater tank which will result in a positive environmental outcome.

22. State Environmental Planning Policy (Housing) 2021

23. Clause 68(2)(c) – Communal Living Space: The Final Plans provide for adequate communal living area being more than minimum dimensions.

24. Clause 68(2)(d) – Communal Open Space: The Final Plans comply with the minimum dimensions.

25. Clause 68(2)(e) – Carparking: The Proposed Development is in an accessible area and requires 0.2 spaces per room. This equates to 18.8 spaces for 94 rooms. There is also a requirement for spaces for the retail component of the Proposed Development which requires between 2.8 and 3.4 spaces depending on use. In total 23 spaces are required. The Proposed Development which includes multiple shared parking spaces calculated at an agreed rate of 1 space as to 4 parking spots complies with this requirement.

26. The modifications do not impact the development’s compliance with the development standards at cl 69 as follows:

27. Clause 69(1)(a) – floor space per room: each single room is at least 12sqm and each double room at least 16sqm excluding kitchen, access to kitchen, bathroom and other non-bedroom space.

28. Clause 69(1)(b) – minimum lot size – the size of the Site exceeds 800sqm.

29. Clause 69(1)(d) – workspace – the co-living development contains a workspace for the manager.

30. Clause 69(1)(e) – business zone: no part of the ground floor fronting Anzac Parade includes a residential use.

31. Clause 69(1)(e) – services: adequate kitchen, bathroom and laundry services are provided within the Proposed Development.

32. Clause 69(1)(f) – 2 lodgers: no room is permitted more than 2 lodgers pursuant to the Plan of Management and this is a condition of consent.

33. Clause 69(1)(h) – bicycle and motorbike parking: adequate facilities are provided for parking of bicycles and motorbikes.

34. Clause 69(2)(a) – does not apply to this zone.

35. Clause 69(2)(b) – separation: the separation distances internally comply so that the rooms in the front and rear building are separated by at least 12 metres.

36. Clause 69(2)(c) – solar access: at least one communal room (the northern facing room) gets solar access between 9am and 3pm on the winter solstice.

37. Clause 69(2)(f) – design: the development achieves the requirements of subclauses (a) and (b) and exhibits design excellence.

Conclusion

20. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, in accordance with s 34(3)(a) of the LEC Act I make the following orders.

Notes

21. The Court notes that:

22. Randwick City Council, as the relevant consent authority, has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending its modification application in accordance with the documents below:

| Plan | Drawn by | Dated | | Site Plan Dwg No. DA1005F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Demolition Plan & Schedule of Change Dwg No. DA1200A, Rev A | Mark Shapiro Architects | 29/08/2023 | | Floor Plans Basement, Dwg No. DA2000F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Ground, Dwg No. DA2001F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Level 1, Dwg No. DA2002F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Level 2, Dwg No. DA2003F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Level 3, Dwg No. DA2004F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Level 4, Dwg No. DA2005F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Level 5, Dwg No. DA2006F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Level 6, Dwg No. DA2007F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Level 7, Dwg No. DA2008F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Level 8, Dwg No. DA2009F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Level 9, Dwg No. DA2010F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Floor Plans Roof, Dwg No. DA2011F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Typical Room Layout – Type A, Dwg No. DA2012F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Typical Room Layout – Type B, Dwg No. DA2013F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Typical Room Layout – Type C, Dwg No. DA2014F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Typical Room Layout – Type D-1, Dwg No. DA2015F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Typical Room Layout – Type E, Dwg No. DA2016F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Typical Room Layout – Type F, Dwg No. DA2017F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Typical Room Layout – Type G, Dwg No. DA2018F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Typical Room Layout – Type D-2, Dwg No. DA2019F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Section A, Dwg No. DA2300F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Section B, Dwg No. DA2301F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Section C & D, Dwg No. DA2302F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Section E, Dwg No. DA2303F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Section F, Dwg No. DA2304F, Rev F | Mark Shapiro Architects | 8/12/2025 | | East Elevations – Anzac PDE, Dwg No. DA2400F, Rev F | Mark Shapiro Architects | 8/12/2025 | | West Elevations – Houston LN, Dwg No. DA2401F, Rev F | Mark Shapiro Architects | 8/12/2025 | | South Elevation, Dwg No. DA2402F, Rev F | Mark Shapiro Architects | 8/12/2025 | | North Elevation, Dwg No. DA2403F, Rev F | Mark Shapiro Architects | 8/12/2025 | | East & West Internal Elevations, Dwg No. DA2404F, Rev F | Mark Shapiro Architects | 8/12/2025 | | External Finishes, Dwg No. DA2405F, Rev F | Mark Shapiro Architects | 8/12/2025 | | Randwick 10.5m Waste Truck Entry | Varga Traffic Planning | 8/12/2025 | | 10.5m Waste Truck & 8.8m MRV Passing | Varga Traffic Planning | 8/12/2025 | | Community Infrastructure Contribution, Dwg No. DA9010C, Rev C | Mark Shapiro Architects | 25/06/2024 | | Public Art Strategy, Dwg No. DA9100C, Rev C | Mark Shapiro Architects | 25/06/2024 | | Landscape Plan –LPS4.55 22 Rev A - Sheet 361/1 to Sheet 361/12, dated 14/08/2025 | Conzept Landscape Architects | 14/08/2025 |

| Document reference | Dated | | Revised Plan of Management, prepared by The Planning Studio | 8 December 2025 | | Waste Management Plan, prepared by Sure Earth Environmental Consultants | 8 December 2025 | | Voluntary Planning Agreement – as amended | 16 December 2025 |

Orders

22. The Court orders that:

23. The modification application pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) is approved.

24. Development consent DA/731/2023 granted by the Land and Environment Court on 17 September 2024 is modified in the terms in Annexure A.

25. Development consent DA/731/2023 as modified by the Court is Annexure B.

S Dixon

Senior Commissioner of the Court

328679.25 Annexure A

328679.25 Annexure B