Barakate v Randwick City Council

[2024] NSWLEC 1276

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barakate v Randwick City Council [2024] NSWLEC 1276

Hearing dates:

Conciliation Conference 14 and 15 May 2024

Date of orders:

28 May 2024

Decision date:

28 May 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant’s written request, pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the RLEP, is upheld.

(2) The appeal is upheld.

(3) Development Application DA/417/2023, as amended, for the demolition of existing dwelling and construction of a new dwelling, and landscaping at 16 Judge Street, Randwick, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – height of building – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 6.2, 6.4, 6.10

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

Environmental Planning and Assessment Regulation 2021, s 38

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Sasha Barakate (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
D Le Breton (Solicitor)(Applicant)
V McGrath (Solicitor)(Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/313019

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No. 417/2023 for the demolition of the existing dwelling to allow for the erection of a detached part two-storey and part four-storey dwelling with associated landscaping and structures (the Proposed Development) at 16 Judge Street Randwick, legally described as Lot 9 in DP 321306 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 May 2024. I presided over the conciliation conference.

3. At the conciliation conference the Applicant made changes to the Proposed Development in accordance with the amended plans and materials listed at [26] which together with the agreed conditions of consent at Annexure A, resolve the Respondent’s merit concerns as contended in the Statement of Facts and Contentions filed on 31 October 2023 and some of the changes are expressly responsive to a number of concerns raised by the objectors. Accordingly, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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.

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

6. 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 to be the terms of cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in agreed jurisdictional note from which I now set out how each jurisdictional prerequisite has been satisfied.

7. The Applicant is the owner of the Site and gave Attena Group authority in writing to lodge development application No. 417/2023 in a letter found at Tab 2 of the Class 1 Application filed on 3 October 2023.

8. Notification requirements under the EPA Act have been satisfied because the Proposed Development was originally advertised and notified for fourteen days commencing on 21 August 2023. Fourteen submissions were received objecting to the Proposed Development in its original form. A copy of all written submissions has been filed by the Respondent. Further, five residents made oral submissions at the conciliation conference on 14 May 2024 and raised a number of concerns including the:

1. Basement car park is an inappropriate outcome;

2. Concern about the loss of possible on street parking;

3. Garages should be off the right of way at the rear;

4. Steepness and angle of the proposed driveway;

5. Driveway will impact the use of the public footpath and stairs;

6. Concern about public infrastructure;

7. Damage to property due to the amount of excavation;

8. Loss of sunlight/overshadowing;

9. Drainage concerns; and

10. Sight lines and pedestrian safety regarding the proposed driveway off Judge Street.

9. The Respondent has considered the written and oral submissions and is satisfied that the issues and concerns raised have been resolved through the amendments to the Proposed Development, and the agreed conditions of consent. Accordingly, under s 3.5.1 of the Randwick Development Control Plan 2013, as the parties’ expert Town Planners consider that the amendments to the Proposed Development will have a similar or lesser effect than that of the original application re-notification is not required.

10. The changes to the Proposed Development include the following:

1. The movement of the building closer to Judge Street is specifically in response to the concerns of the adjoining property at 18 Judge Street in relation to solar access;

2. The removal of the basement/garage which addresses the concerns of numerous residents expressed on site;

3. The privacy concerns to the north have otherwise been addressed by the inclusion of privacy screens and no material impact arises by reason of the changes; and

4. The roof element resulting in the contravention of the maximum height of building is not floor space but limited to the northeastern corner of the eave and roof.

11. The Site is located within the R3 Medium Density Residential zone in which dwelling houses are permissible with development consent pursuant to the Land Use Table to the RLEP.

12. Under cl 4.3(2A) of the RLEP, the maximum height of a dwelling house on land in Zone R3 Medium Density Residential is 9.5m. The Proposed Development has a small component of the roof eave at 10.028m which contravenes the Height Of Building (HOB) development standard. This is directly as a result of the amendments made by the Applicant in response to the contentions and the concerns of the neighbour to improve solar access to the neighbouring private open space. The Applicant relies on, and the Respondent supports, a written request prepared by GSA Planning filed 15 May 2024, prepared pursuant to cl 4.6 of the RLEP which provides as follows:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows—

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a)  compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b)  there are sufficient environmental planning grounds to justify the contravention of the development standard.

Note—

The Environmental Planning and Assessment Regulation 2021 requires a development application for development that proposes to contravene a development standard to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).

…

13. The extent of the non-compliance can be readily seen from the extracts of Drawing A110 North Elevation depicting HOB contravention (facing 14 Judge Street) at Fig 1 and Drawing A111 South Elevation depicting HOB compliance (facing 18 Judge Street) at Fig 2 below.

Fig 1: Extract of North Elevation Drawing A110 Rev 10

Fig 2: Extract of South Elevation Drawing A111 Rev 10

14. The Court, having the functions of the consent authority for the purposes of hearing and disposing of the appeal, is satisfied that the development application for development that proposes to contravene a development standard is accompanied by a document setting out the grounds on which the Applicant seeks to demonstrate the matters in paragraphs (a) and (b) of cl 4.6(3) of the RLEP. Firstly, compliance with the development standard in cl 4.3 of the RLEP is unreasonable or unnecessary in the circumstances of the case because the Proposed Development satisfies Test 1 established in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, namely, that despite the non-compliance with the HOB development standard, the Proposed Development achieves the objectives of cl 4.3 of the RLEP because the desired medium density character of the area and provides a height, bulk and scale that is generally consistent with that envisaged by Council’s controls and for that reason, the development standard is unreasonable and unnecessary in this instance.

15. Secondly, there are sufficient environmental planning grounds to justify the contravention of the HOB development standard in cl 4.3 of the RLEP because the amendments result in a better design outcome which as a function of topography results in a minor contravention as shown in Fig 1, while maintaining environmental amenity.

16. Clause 4.4 of RLEP sets a maximum floor space ratio (FSR) on the Site of 0.65:1. The Proposed Development complies with the FSR development standard as it proposes an FSR of 0.645:1.

17. In the context of the terms of cl 5.10 of the RLEP, the Site is not located in a Heritage Conservation Area and is not a heritage item pursuant to the RLEP, however, the Site is located in the vicinity of Local Heritage Item L394 - Judge Street sandstone stairs and retaining walls.

18. Pursuant to cl 5.10(4) of the RLEP, I am satisfied that the Respondent has considered the effect of the Proposed Development on the heritage significance of Local Heritage Item L394 - Judge Street sandstone stairs and retaining walls as being acceptable in accordance with the assessment filed at Tab 4 of the Respondent's Bundle of Documents.

19. The Proposed Development includes earthworks and pursuant to cl 6.2 of RLEP, development consent must not be granted unless certain matters as listed in cl 6.2(3) have been considered. The relevant matters have been considered by the parties, and the parties are agreed that subject to conditions 13 and 22 of Annexure A being imposed, no unacceptable impact will arise.

20. Development consent must not be granted unless the consent authority is satisfied regarding certain matters as listed in cl 6.4(3) of the RLEP relating to stormwater management. The parties are satisfied regarding those matters and agree that, subject to appropriate conditions being imposed, no unacceptable impact will arise. The relevant conditions proposed and agreed to by the Applicant are Conditions 16-19.

21. Development consent must not be granted unless the consent authority is satisfied that certain essential services are available or adequate arrangements have been made to make them available (cl 6.10 RLEP). The parties agree those services are available or that adequate arrangements have been made to make them available, subject to appropriate conditions being imposed. The relevant conditions proposed and agreed to by the Applicant are Conditions 10, 16 – 19 and 46.

22. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Statement of Environmental Effects prepared by GSA Planning, filed at Tab 3 of the Class 1 Application, describes the existing dwelling that currently occupies the Site as having been constructed in the early 20^th Century. Given the historical use of the Site for residential purposes, there is no reason to believe that the Site may be contaminated.

23. BASIX Certificate 1390782S_02 dated 15 Mary 2024 has been filed with the Court to satisfy the requirement in the Environmental Planning and Assessment Regulation 2021.

24. 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. I adopt the reasons given by the parties in accordance with this judgment.

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.

Notations:

26. The Court notes:

1. The Respondent, Randwick City Council, approves pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending development application no. DA/417/2023 in accordance with the amended architectural plans and additional information listed below:

1. Architectural Plans prepared by Attena Group:

1. A000 Cover REV 10 14/05/2024

2. A100 Survey REV 5 16/04/2024

3. A101 Site Plan REV 9 07/05/2024

4. A102 Front Landscape Issue for DA 8 03/05/2024

5. A103 Lower Ground Floor REV 8 03/05/2024

6. A104 Ground Floor REV 10 14/05/2024

7. A105 Level 1 REV 10 14/05/2024

8. A106 Roof REV 10 14/05/2024

9. A107 Section 1 REV 10 14/05/2024

10. A108 Section 2 REV 10 14/05/2024

11. A109 Elevation REV 10 14/05/2024

12. A110 Elevation REV 10 14/05/2024

13. A111 Elevation REV 10 14/05/2024

14. A112 GFA calculation REV 10 14/05/2024

15. A113 Landscape & Site Coverage REV 10 14/05/2024

16. A113b Compliant Blanket REV 10 14/05/2024

17. A114 Shadow Diagram REV 10 14/05/2024

18. A115 Shadow Diagram REV 10 14/05/2024

19. A116 Shadow Diagram REV 10 14/05/2024

20. A117 Shadow Diagram REV 10 14/05/2024

21. A117a Shadow Diagram REV 10 14/05/2024

22. A117C View From Sun REV 10 14/05/2024

23. A117D View From Sun REV 10 14/05/2024

24. A118 Elevational Shadow diagram - No.18 REV 8 03/05/2024

25. A119 Elevational Shadow diagram - No.18 REV 8 03/05/2024

26. A120 Privacy Assessment REV 9 07/05/2024

27. A121 3D View REV 9 07/05/2024

28. A122 Schedule of Materials and Finishes REV 7 01/05/2024

29. A123 Window Schedule REV 10 14/05/2024

30. A124 Window Schedule REV 10 14/05/2024

2. BASIX Certificate 1390782S_02 dated 15 May 2024

3. Tree Canopy Plan prepared by Conzept Landscape Architects dated May 2024 (DWG No. LPDA23-240); and

4. Root Mapping Report prepared by Koala Arbor Consulting dated 13 May 2024.

5. Clause 4.6 variation to height development standard prepared by GSA Planning dated 15 May 2024

2. The Applicant provided the Amended Application to the Court on 15 May 2024.

Orders:

27. The Court orders:

1. The Applicant’s written request, pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the RLEP, is upheld.

2. The appeal is upheld.

3. Development Application DA/417/2023, as amended, for the demolition of existing dwelling and construction of a new dwelling, and landscaping at 16 Judge Street, Randwick, is determined by the grant of consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

313019.23 Annexure A

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Decision last updated: 28 May 2024