Alimova v Randwick City Council

[2024] NSWLEC 1651

Land and Environment Court

New South Wales

Medium Neutral Citation:

Alimova v Randwick City Council [2024] NSWLEC 1651

Hearing dates:

Conciliation Conference on 9 and 30 August 2024

Date of orders:

16 October 2024

Decision date:

16 October 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No. DA/1091/2023, as amended, for alterations and additions to the existing semi-detached dwelling including internal reconfiguration of rooms at all levels, new windows and door along the western elevation, new rear addition at ground floor level, new front and rear balconies at first floor level, with a carport structure, in-ground swimming pool, extended patio at lower ground level and new landscaping, at 36 Shackel Avenue, Clovelly, NSW, 2031, legally known as Lot 1 DP 303494, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.2, 2.3, 4.3, 4.4, 6.1, 6.2, 6.4, 6.7, 6.10

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, Ch 4, s 4.6

Texts Cited:

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

N Alimova (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
V Conomos (Applicant)
M O’Gorman-Hughes (Respondent)

Solicitors:
Conomos Legal (Applicant)
Randwick City Council (Respondent)

File Number(s):

2024/53913

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Randwick City Council of development application DA/1091/2023 (the DA) for alterations and additions to the existing semi-detached dwelling including internal reconfiguration of rooms at all levels, new windows and door along the western elevation, new rear addition at ground floor level, new front and rear balconies at first floor level, with a carport structure, in-ground swimming pool, extended patio at lower ground level and new landscaping at 36 Shackel Avenue Clovelly NSW 2031, legally known as Lot 1 DP 303494 (the site).

2. 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 9 August 2024. I presided over the conciliation conference, which commenced with a site inspection. Two objectors from adjoining properties attended the onsite view and made submissions to the Court.

3. The s 34 conciliation conference was adjourned to 30 August 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

4. After the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The parties advise that a number of changes have been made in the amended DA in response to the contentions raised by the Respondent and the concerns of the submitters, including:

1. Carport reduced in width;

2. Carport reduced in height;

3. Roof line on western side of 1^st floor northern terrace aligned at 1m balustrade height and terrace reduced in width as a result;

4. Landscaping added to pool and driveway;

5. Pool equipment relocated;

6. Chimney removed;

7. Roof over rear balcony reduced in height;

8. Retaining walls added; and

9. Eave line on western side reduced by 300mm.

6. A signed s 34 agreement with Annexure A was filed with the Court on 30 August 2024, with amended plans (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Environmental Planning and Assessment Act 1979

Owner’s consent

10. The parties advise that the DA was made with the written consent of the owners of the site.

Community Participation (Sch 1, Div 2, s 7(1) of the EPA Act)

11. The parties advise that the DA was lodged on 3 January 2024 and was subject to a public community consultation period between 11 January and 6 February 2024. Five submissions were received by the Respondent objecting to the proposed development.

Conditions

12. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Randwick Local Environmental Plan 2012

13. The Randwick Local Environmental Plan (the LEP) applies to the site and to the proposed development. Under the LEP provisions:

1. The site is zoned R2 Low Density zone pursuant to cl 2.2 of the LEP; and

1. Development for the purposes of a semi-detached dwelling is permissible with consent in the R2 Low Density zone pursuant to cl 2.3 of the LEP; and

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

2. Pursuant to cl 4.3 of the LEP, the maximum height of buildings (HoB) on the site is 9.5 metres. The parties advise that the original DA complied with the HoB development standard for the building, and the height remains unchanged in the amended DA;

3. The parties advise that the amended DA plans indicate a proposed gross floor area of 206.8m² which provides for a Floor Space Ratio (FSR) of 0.885:1 on the site. The parties further advise that:

1. Pursuant to cl 4.4(2) of the LEP, the mapped maximum floor space ratio (FSR) of 0.5:1 applies to the site; and

2. Clause 4.4A(4) of the LEP then provides an additional FSR control of 0.65:1 for dwelling houses and semi-detached dwellings in Zone R2 on lots that are between 275m² and 300m²;

3. Clause 4.4A(4) of the LEP states that cl 4.4(2) does not apply to a dwelling house or semi-detached dwelling on a lot in Zone R2 Low Density Residential or R3 Medium Density Residential if the lot size is 300m² or less; and

4. As the site area is 240.3m2, there is no applicable FSR control;

4. Pursuant to cl 6.1 of the LEP, the parties advise that the site is not mapped as being acid Sulfate soils affected and thus cl 6.1 of the LEP does not apply;

5. Clause 6.2 of the LEP sets out the matters that the consent authority is required to consider before granting development consent for earthworks. The consent authority must be satisfied that the proposed earthworks will not result in adverse impacts to the soil and vegetation on the site and adjoining properties; and the parties advise that:

1. Minor levels of earthworks are proposed for the purpose of facilitating the provision of a new swimming pool; and

2. The parties are satisfied that that level of excavation will comply with the requirements of cl 6.2.

6. Clause 6.4 of the LEP relates to stormwater management. The parties advise that the stormwater concept plan prepared by Archispectrum for the amended DA is designed with the intent of ensuring that any additional stormwater generated by the new works will be appropriately managed;

7. Clause 6.7 of the LEP relates to the Foreshore Scenic Protection Area. The site is within the Foreshore Scenic Protection Area, and the parties advise that:

1. The proposed dwelling, inclusive of the new additions, will not be perceptible when viewed from public areas along the coast.

2. In terms of built form, the proposed development seeks to provide a scale of development that is not at odds with that observed across the defining context.

3. Stormwater and runoff will be managed in accordance with the concept Stormwater Drainage Plans (submitted separately) to maintain the existing drainage patterns and prevent any effect on the coastline.

4. The scale of the proposed building is congruent with that observed within the defining context where it will visually integrate into the established setting in a manner that will reinforce the scenic qualities of the coastline in a positive manner.

8. Clause 6.10 of the LEP relates to essential services. The parties advise that the site is currently serviced by water, electricity, sewer as well as direct vehicular and pedestrian access services.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) relates to clearing vegetation in non-rural areas and applies to the site. The parties advise that the proposed development will not result in the clearing of any vegetation that exceeds the biodiversity offsets scheme, and does not involve clearing that is, or forms, part of a heritage item or a heritage conservation area, or is, or forms, part of an Aboriginal object or that is a known Aboriginal place of heritage significance.

15. Chapter 6 of the Biodiversity SEPP relates to water catchments, and does not apply to the site as it is not within the Sydney Harbour Catchment area.

16. The parties submit that the proposed development is consistent with the requirements and objectives of the Biodiversity SEPP.

State Environmental Planning Policy (Sustainable Buildings) 2022

17. State Environmental Planning Policy (Sustainable Buildings) 2022 (the Sustainable Buildings SEPP) applies as the DA was lodged after the Sustainable Buildings SEPP came into operation.

18. In relation to the provisions of the Sustainable Buildings SEPP, the Applicant’s amended DA is accompanied by BASIX Certificate No. A1730808 dated 18 December 2024 prepared by Greenworld Architectural Drafting. The parties submit that the proposed development satisfies the requirements of the BASIX certificate in terms of water conservation, energy efficiency and thermal comfort.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. The parties advise that the site is not identified as being within the coastal environment area on the Coastal Environment Area Map nor within the coastal use area on the Coastal Use Area Map and therefore the provisions of Ch 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) are not applicable to the proposed development.

20. Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and the parties advise that:

1. The parties advise site is not identified on the public register of contaminated sites and is not located in the vicinity of any contaminated sites;

2. The current use of the site is as a residential dwelling and the granting of consent to the development application maintains that residential use; and

3. There is no contamination risk, subject to the imposition of suitable conditions relating to demolition.

21. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

Randwick Comprehensive Development Control Plan 2013

22. The contentions raised by the Respondent in the Statement of Facts and Contentions (SOFAC) relating to the provisions of the Randwick Comprehensive Development Control Plan 2013 (the DCP) have been resolved in amended DA.

Conclusion

23. Having considered the advice of the parties provided above at [10]-[22], I am satisfied that:

1. The Applicants’ amended DA can be approved having regard to the matters in s 4.15(1)(b)–(e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

24. Further, 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.

25. 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.

Notes

26. The Court notes:

1. That Randwick City Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA/1091/2023 made on 30 August 2024 to rely on the documents specified below:

Plans	Drawn by	Dated
DA03.1 Rev C Demolition Lower Ground Floor Plan	Archi Spectrum	14.08.2024
DA03.2 Rev C Demolition Ground Floor Plan	Archi Spectrum	14.08.2024
DA03.3 Rev C Demolition First Floor Plan	Archi Spectrum	14.08.2024
DA03.01 Rev C Proposed Lower Ground Floor Plan	Archi Spectrum	14.08.2024
DA03.02 Rev C Proposed Ground Floor Plan	Archi Spectrum	14.08.2024
DA03.03 Rev C Proposed First Floor Plan	Archi Spectrum	14.08.2024
DA 03.04 Rev C Site and Roof Plan	Archi Spectrum	14.08.2024
DA04.01 Rev C North & South Elevations	Archi Spectrum	14.08.2024
DA04.02 Rev C West Elevation	Archi Spectrum	14.08.2024
DA04.03 Rev C East Elevation	Archi Spectrum	14.08.2024
DA05.01 Rev C Section	Archi Spectrum	14.08.2024
DA06.01 Rev C Concept Stormwater Plan	Archi Spectrum	14.08.2024
DA08.02 Rev C Landscape Calculations	Archi Spectrum	14.08.2024
Landscape Plan Dwg 23-4954 L01	Zenith Landscape Designs	12.12.2023
Landscape Plan Dwg 23-4954 L02	Zenith Landscape Designs	12.12.2023
BASIX Certificate No.	Dated	Prepared by
A1730808	18 December 2023	Greenworld Architectural Drafting

Orders

27. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No. DA/1091/2023, as amended, for alterations and additions to the existing semi-detached dwelling including internal reconfiguration of rooms at all levels, new windows and door along the western elevation, new rear addition at ground floor level, new front and rear balconies at first floor level, with a carport structure, in-ground swimming pool, extended patio at lower ground level and new landscaping, at 36 Shackel Avenue, Clovelly, NSW, 2031, legally known as Lot 1 DP 303494, subject to the conditions of consent in Annexure A.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 16 October 2024