A recent decision by the NSW Land and Environment Court serves as a powerful case study in how proactive negotiation and design amendment can overcome complex planning disputes to secure development consent.
The case involved an appeal against Randwick City Council’s deemed refusal of a development application for a part-three, part-four storey residential apartment building in Coogee. The initial proposal faced significant opposition from both the Council and local residents, leading to a contested hearing.
From Contentions to Agreement Through the Conciliation Process
The Court arranged a conciliation conference between the parties, a facilitated negotiation process designed to resolve disputes without a fully contested hearing. Initially, the Council had raised numerous contentions, including:
Exceeding the permitted Floor Space Ratio (FSR)
Inconsistency with the local character and zone objectives
Inadequate solar access, setbacks, and landscaping
Adverse off-site impacts like overshadowing and loss of privacy
Fifteen public submissions echoed these concerns, highlighting issues with building bulk, traffic, and construction impacts.
Key Amendments That Secured Consent
During the conciliation process, the applicant agreed to a series of critical design changes that ultimately resolved the Council’s contentions and mitigated objectors’ concerns. The key amendments included:
Reducing Bulk and Scale: The overall building mass was reduced, improving its relationship to the site and streetscape.
Improving Amenity: The configuration of apartments was altered to achieve better solar access.
Enhancing Privacy: Privacy screens were introduced to eliminate cross-viewing and protect neighbouring properties.
Boosting Landscaping: Improved landscaping plans were incorporated.
Resolving Technical Issues: Additional information satisfied the Council on issues like waste management, stormwater, and visitor parking.
These changes also resulted in a minor reduction of the basement car parking from twelve to eleven spaces.
Navigating a Variation to Development Standards
A central legal hurdle was the proposal’s non-compliance with the FSR development standard. The amended design utilised the bonus FSR provisions under the State Environmental Planning Policy (Housing) 2021 for providing an affordable housing unit. However, it still sought a minor variation of approximately 4.5%.
The Court accepted a written request under Clause 4.6 of the Randwick LEP, finding that the applicant had demonstrated compliance was “unreasonable or unnecessary” because the amended design was compatible with the streetscape, achieved the objectives of the standard, and provided a public benefit through affordable housing.
Court’s Finding and Outcome
The Commissioner was satisfied that the amended application, now comprising seven units (including one managed by a community housing provider), addressed all jurisdictional prerequisites. The Court upheld the appeal and granted development consent, subject to agreed conditions.
Key Takeaways for Developers and Applicants
This case underscores several important points for anyone involved in development:
The Conciliation Process Works: The s.34 conference provided a flexible forum for the parties to collaborate on a mutually acceptable solution, saving significant time and costs compared to a full hearing.
Early and Strategic Amendment is Crucial: The applicant’s willingness to amend the plans during the conference was instrumental in overcoming contentions and achieving a positive outcome.
Affordable Housing Incentives Can Be Leveraged: The case demonstrates the practical application of the SEPP (Housing) 2021 incentives, which can provide a pathway for achieving greater density in suitable locations.
A Minor Variation Can Be Justified: With a well-prepared Clause 4.6 variation request that focuses on the objectives of the standard, minor exceedances can be successfully justified.
How We Can Help
Our team can assist you with navigating the Land and Environment Court processes, including conciliation conferences. If you are facing a complex development challenge or a refused or deemed refused DA, we can provide the strategic advice needed to achieve a successful outcome.
Contact us today to discuss how we can assist with your project.
