Background
Jofilo Pty Ltd sought consent to amend an existing approval for a mixed-use development at 10 Blenheim Street, Randwick. The amended proposal added three storeys, producing an eight-storey building with seven basement parking spaces, a ground-floor health service facility and 22 apartments. After the application was not determined within the prescribed period, Jofilo appealed the deemed refusal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW); Randwick City Council later formally refused the application.
The proceeding was initially listed for a merits hearing, but the parties resolved all disputed issues and reached agreement through a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW). Their agreement proposed that the appeal be upheld and consent granted subject to conditions. Because the proposal exceeded the applicable 22-metre, six-storey and 2.2:1 floor-space-ratio standards under the State Environmental Planning Policy (Housing) 2021, the Court still had to determine whether it had power to make the agreed orders.
The Court’s Holding
The Court upheld the appeal and granted consent to the amended development application, subject to the conditions in Annexure A. Commissioner Horton found that the parties’ agreement reflected a decision the Court could properly have made, requiring the proceeding to be disposed of in accordance with that agreement under s 34(3) of the Land and Environment Court Act.
The Court accepted the written requests justifying the height and floor-space-ratio contraventions. The maximum height exceedance was 340 millimetres, was largely confined to recessive rooftop elements and did not create additional habitable space or material amenity impacts. Although the proposed 2.99:1 floor-space ratio exceeded the Housing SEPP standard, it remained within the 3:1 standard under the Randwick Local Environmental Plan and was consistent with the anticipated future character of the area. The Court was also satisfied that the applicable design, parking, rail-corridor, utility, noise, sustainability, stormwater, servicing, design-excellence and affordable-housing requirements had been addressed. It expressly made no merits assessment of the issues originally disputed between the parties.
Key Takeaways
- A court approving a conciliation agreement must independently confirm that all jurisdictional prerequisites are satisfied and that the agreed decision is one it could lawfully make.
- The Court accepted variations permitting an eight-storey, 26.34-metre building with a 2.99:1 floor-space ratio, based on the minor physical height exceedance, the locality’s planned future character and the absence of material amenity impacts.
- The consent incorporated conditions addressing matters including parking management, electric-vehicle infrastructure, rail-authority requirements, noise and vibration, stormwater and affordable housing.
Why It Matters
The decision illustrates the scrutiny applied to negotiated outcomes in New South Wales planning appeals. Even where the developer and consent authority agree, the Court must establish its statutory power to approve the development, including the legal adequacy of requests to vary planning standards. The judgment also underscores that orders made following conciliation do not necessarily represent a judicial resolution of the parties’ original merits disputes.