Adabjou v Randwick City Council

[2019] NSWLEC 1343

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Adabjou v Randwick City Council [2019] NSWLEC 1343
Hearing dates:	Conciliation conference on 19 July 2019
Date of orders:	24 July 2019
Decision date:	24 July 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See orders at [9] below
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Sasan Adabjou (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2018/219035
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Randwick City Council's deemed refusal of development application 277/2018 (‘DA’).

2. The DA which is the subject of these proceedings, subsequent to amendments for which leave has been granted, is for demolition of existing structures, construction of a 3 storey residential flat building containing 6 apartments (5 x 2-bedroom apartment, 1 x 3-bedroom apartments) over basement car parking for 9 cars (including 6 x in a stacked arrangement and 1 x visitor space) and 2 motorcycles and associated landscaping. The land to which the development application relates is 30 Beach Street, Coogee.

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 19 July 2019. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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.

6. 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 certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in a note accompanying the s34 agreement. The note explained how jurisdictional matters have been or could be satisfied. In regard to jurisdiction, I note the following:

• The development application was made with the written consent of landowners.

• The development is permissible within the applicable Zone R3 Medium Density Residential zone of Randwick Local Environmental Plan 2012 (‘LEP’).

• The development does not contravene any development standard in the LEP or other applicable environmental planning instrument.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given the long-term use of the site for residential purposes, Council indicates the site is not likely to be contaminated. I am satisfied that due practical consideration has been given to the question of contamination and it has not been found that the site is contaminated. I am satisfied in regard to the relevant requirements.

• In accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000, the development application was accompanied by BASIX Certificates in respect of the proposed development.

• Consideration has been given as to the matters specified in cl 6.2(3) of the LEP relating to development involving ancillary earthworks and the proposed development is considered acceptable in relation to those matters having regard to the findings of the following reports:

• Geotechnical Investigation Report prepared by Morrow Geotechnics Pty Ltd dated 27 February 2018; and

• Shoring Design Report for Residential Development – 30 Beach Street, Coogee dated 6 March 2019.

• Having regard to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) adequate regard has been given to: (a) the design quality principles; and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. I also note the Applicant’s architect has prepared an updated design verification statement in satisfaction of cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000.

• I have been provided with an explanation on how consideration has been given to public submissions.

7. I have relevantly affirmed the advice of the parties with respect to the above and 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.

8. 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. I note that I have had no direct regard to the merits of the application in coming to this position.

9. The Court orders:

1. The Applicant is granted leave to rely on the following amended plans:

DWG NO.	DESCRIPTION	PREPARED BY	REV	DATE
A101	Cover Sheet	eK Design Studio	7	06/06/2019
A102	Locality Plan	eK Design Studio	7	06/06/2019
A103	Site Analysis Plan	eK Design Studio	7	06/06/2019
A104	Basement & Ground – Floor Plan	eK Design Studio	9	06/06/2019
A105	Level 1 & 2 – Floor Plan	eK Design Studio	8	06/06/2019
A106	Roof Plan	eK Design Studio	8	06/06/2019
A109	North & South Elevation	eK Design Studio	8	06/06/2019
A110	East & West Elevation	eK Design Studio	8	06/06/2019
A111	Sections	eK Design Studio	8	06/06/2019
A111.1	Sections 2	eK Design Studio	2	06/06/2019
A112	Shadow Diagram	eK Design Studio	6	06/06/2019
A113	Shadow Diagram	eK Design Studio	6	06/06/2019
A115	Proposed Building Envelope	eK Design Studio	6	06/06/2019
A116	SEPP Diagrams – Solar Access	eK Design Studio	7	06/06/2019
A117	SEPP Diagrams – Cross Ventilation	eK Design Studio	6	06/06/2019
A118	GFA Diagrams	eK Design Studio	7	06/06/2019
A119	Survey Plan	eK Design Studio	6	06/06/2019
A120	Building Height Diagrams	eK Design Studio	6	06/06/2019
A121	Materials Sample Board	eK Design Studio	5	06/06/2019
A122	Demolition Plan	eK Design Studio	5	06/06/2019
A123	3D Views	eK Design Studio	5	06/06/2019
A124	3D Views	eK Design Studio	5	06/06/2019
A127	Detail Sections	eK Design Studio	5	06/06/2019
A128	Detail Sections	eK Design Studio	5	06/06/2019
A129	Detail Sections	eK Design Studio	5	06/06/2019
A135	Deep Soil Calculation	eK Design Studio	3	06/06/2019
A136	Shadow Diagram – Section	eK Design Studio	3	06/06/2019
A139	9.5m Height Plane Diagram	eK Design Studio	3	06/06/2019

DESCRIPTION	PREPARED BY	REV	DATE
Design Verification Report	Eshan Khoshsima	July 2019
BASIX Certificate No. 913913M_02	Frys Energywise	9 July 2019

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. 277/2018 for the demolition of existing structures and construction of a 3 storey residential flat building containing 6 apartments (1 x 3 bedroom and 5 x 2 bedroom) over basement parking for 9 cars (including 6x in a stacked arrangement and 1x visitor space) and 2 motorcycles and associated landscaping on the land at 30 Beach Street, Coogee is approved, subject to the conditions set out in Annexure “A”.

……………………………

P Walsh

Commissioner of the Court

Annexure A (439 KB, pdf)

Plans (8.39 MB, pdf)

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Amendments

30 July 2019 - Plans uploaded

Decision last updated: 30 July 2019