COMMISSIONER: This Class 1 appeal is the result of Randwick Council's refusal of Development Application No. DA/620/2020, which seeks consent for demolition of existing structures and construction of a 3 storey residential flat building containing 4 apartments, 1 basement level car parking, landscaping, strata subdivision and associated works, pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) at 28 Vicar Street, Coogee, Lot 2 DP 18489. These proceedings have been brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
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 8 February 2022 and further on 1 March and 22 March 2022. I presided over the conciliation conference.
After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be mutually acceptable based on an amended application (the proposed development). This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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 from this I note the following points.
The development application was notified from 25 November 2020 to 18 December 2020. Ten submissions were received, all in objection to the development. These submissions have been considered in the amendment and subsequent assessment of this application.
The Randwick Local Environmental Plan 2012 (RLEP) applies to this site. Pursuant to the provisions of the RLEP, the site is zoned R3 Medium Density Residential in which residential flat buildings are permitted with consent. I have considered the objectives of the zone and note that the development application is consistent with the relevant objectives, as detailed in the Statement of Environmental Effects (SEE).
The RLEP sets the following development standards:
1. Clause 4.3 sets a maximum building height of 12m. The proposal complies with this, with a maximum height of 11.1m.
2. Clause 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.9:1. The proposed FSR of 0.95:1 is permissible pursuant to the bonus FSR available under the SEPP ARH. The additional 0.20:1 FSR is allowed under the SEPP ARH cl 11(b) as the residential flat buildings are a permissible development type on the site, there is no heritage item on the land, the percentage of the gross floor area to be used for affordable housing is at least 20% and the site is in an area accessible to public transport. Based on the drawings provided for the amended application and the submissions of the parties, I am satisfied that the proposal is of a height, bulk and scale that is appropriate for the site, notwithstanding the greater FSR than is typically afforded by the RLEP.
3. Pursuant to RLEP cl 5.10, I note that the site is not heritage listed nor is it in a conservation area, but it is directly adjacent to heritage items no. 168 to the west and 169 to the south west. I am satisfied based on the drawings within the amended application and detail provided in the SEE that the height and design of the proposed development will not result in any undue impact to nearby heritage items.
4. Pursuant to cl 6.1, the proposed development is identified as being affected by Acid Sulfate Soils, Class 5. However, the proposed development does not constitute "works within 500 metres adjacent to Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent 1, 2, 3, or 4 land". An Acid Sulfate Management Plan is therefore not required and the requirements of cl 6.1 are met.
5. Clause 6.2 aims to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. From the information provided in the Geotechnical Investigation Report prepared by Geotechnical Consultants Australia, dated 7 October 2020, I have considered the matters in cl 6.2(3) and am satisfied that the objective of this clause is met in the proposed development.
6. Clause 6.4 aims to minimise the impacts of urban stormwater on the subject site and on adjoining properties, native bushland and receiving waters. I am satisfied, based on the drainage plans by Zait Engineering Solutions Pty Ltd, Revision B, dated 17 March 2022 and the revised architectural plans by ASA Architects, dated 9-11 March 2022, that the requirements of cl 6.4(3) are met in the proposed development.
The SEPP ARH applies to the proposed development as it includes one dwelling that is to be considered 'affordable housing' pursuant to Div 1 of this SEPP. This development application has subsequently been assessed pursuant to the provisions of the SEPP ARH, and from this I note:
1. Pursuant to the requirements of cl 10, the proposed falls under Div 1, In-fill affordable housing, because the proposed development: is permitted with consent in Zone R3 Medium Density Residential under the RLEP; is on land that does not contain a heritage item; and is located within an 'accessible area' of the Greater Sydney Region.
2. As required under cl 13(a), the proposed FSR of 0.95:1 is well below the 2.5:1 maximum FSR stipulated.
3. Clause 14 establishes several non-discretionary development standards against which the proposed development has been considered and based on the amended architectural and landscape drawings I am satisfied that it meets the requirements of this clause in terms of site area, total landscaped area, deep soil, direct sunlight and parking.
4. As stated in condition 3 of Annexure A, the affordable housing component of the proposed development will be used as such for at least 10 years from the date of issue of the occupation certificate, as required under cl 17.
Clause 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) and cl 7 of the (now repealed) State Environmental Planning Policy No. 55-Remediaton of Land (SEPP 55) requires consideration of whether the subject site is contaminated or potentially contaminated, and the consent authority must be satisfied that the land is suitable for its intended use. I am satisfied based on the information in the SEE that the site has a long history of residential use and that no further investigation of contamination is warranted, and that the requirements of both SEPPs are met.
The amended proposal is accompanied by a BASIX certificate, 1150186M_02 dated 17 March 2022, that applies to the proposed development, as required under State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (2002) (SEPP 65) requires a consent authority, under cl 28(2), to consider advice obtained from a design review panel. The initial application was reviewed by the relevant design review panel, who made comments on the lack of landscape setback to the east of the site as a result of the additional floor space allocated under the SEPP ARH. I am satisfied based on the amended architectural and landscape drawings, and the submissions of the parties that the development application as amended represents a reduced FSR and an increased eastern setback, allowing greater landscape to the termination of Vicar St as requested by the panel.
I have also considered, and am satisfied based on the Design Verification Statement by ASA Architects dated 29 March 2022 and the SEE, that the proposed development meets the relevant design quality principles and standards under the Apartment Design Guide.
For these reasons, 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 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.
The Court notes:
1. Randwick City Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the Development Application DA/620/2020 with the plans, drawings and documents listed in Condition 1 of the Conditions of Consent provided as Annexure 'A' to this Agreement and the following (Amended Development Application):
1. Design Verification Statement dated 28 March 2022, prepared by ASA Architects Pty Ltd;
2. Table - Compliance with Apartment Design Guidelines dated 30 March 2022, prepared by ASA Architects Pty Ltd;
3. ABSA - Assessor Certificate no. 59346886 dated 17 March 2022; and Stormwater plans (Issue B) dated 17 March 2022, prepared by Zait Engineering Solutions Pty Ltd.
1. The Applicant uploaded the Amended Development Application on the NSW planning portal on 30 March 2022.
2. The Applicant filed the Amended Development Application with the Court on 30 March 2022.
The Court orders:
1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that are thrown away as a result of the amendment of Development Application DA/620/2020, in the amount of $7,560.
2. The Appeal is upheld.
3. Development Application DA/620/2020 for demolition of existing structures and construction of a 3 storey residential flat building containing 4 apartments, 1 basement level car parking, landscaping, strata subdivision and associated works, pursuant to the Affordable Housing Rental SEPP 2009 at 28 Vicar Street, Coogee 2034 is determined by the grant of consent, subject to the conditions in Annexure 'A' to this Agreement.
[2]
Acting Commissioner of the Court
Annexure A (550636, pdf)
[3]
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Decision last updated: 14 April 2022