Barua No. 4 Pty Ltd v Randwick City Council

[2024] NSWLEC 1091

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barua No. 4 Pty Ltd v Randwick City Council [2024] NSWLEC 1091

Hearing dates:

Conciliation conference on 24 November, 8 and 15 December 2023, and 29 January and 5 February 2024

Date of orders:

5 March 2024

Decision date:

05 March 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Consent is granted to Modification Application DA676/2019/B (as amended).

(2) Development Consent DA676/2019 is modified in the terms set out at Annexure A.

(3) Development Consent DA676/2019 as modified by the Court is set out at Annexure B.

Catchwords:

MODIFICATION APPLICATION – residential apartment development – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 98, 100, 102, 113

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Randwick Local Environmental Plan 2012

Cases Cited:

Barua No. 4 Pty Ltd v Randwick City Council [2021] NSWLEC 1156

Texts Cited:

NSW Department of Planning, Apartment Design Guide (2015)

Category:

Principal judgment

Parties:

Barua No. 4 Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/201818

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), these proceedings concern a Modification Application DA/676/2019/B (the MA) made directly to the Court by Barua No. 4 Pty Ltd (the Applicant).

2. The MA seeks to modify Development Consent DA/676/2019 (the parent DA) which comprises the demolition of existing structures and construction of a part three- and part four-storey residential flat building with seven units and 18 basement carparking spaces at 31-33 Melrose Parade, Clovelly (the site).

3. Consent for the parent DA was granted by the Court on 30 March 2021 in Barua No. 4 Pty Ltd v Randwick City Council [2021] NSWLEC 1156 (Barua v Randwick).

4. An initial Modification Application (DA/676/2019/A) was approved by the delegated authority of Randwick City Council (the Respondent) on 1 December 2021.

5. The subject MA was lodged with the Court on 23 June 2023.

6. At the date of its lodgement, the MA sought approval for a range of relatively minor changes which include:

1. Reconfiguration of Apartment 01 to provide for a fourth bedroom, walk-in wardrobe, ensuite and wine cellar.

2. Reconfiguration of Apartment 03 to provide for a home cinema, wine cellar, store room, laundry, powder room and outdoor swimming pool.

3. Increase in area to Apartment 06 by enclosure of approved pergola.

4. Reorientation of bedroom windows and removal of approved privacy screens.

5. Increase to the extent of approved privacy louvres on northern elevation.

6. Changes to pedestrian access along the street frontage.

7. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 November, 8 and 15 December 2023, and 29 January and 5 February 2024. I presided over the conciliation conference.

8. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court granting consent to an amended MA, subject to conditions.

9. 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. The parties' decision involves the Court exercising the function under s 4.55(8) of the EPA Act to modify the parent DA.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

11. In that regard and pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), I am satisfied the amended MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

12. The parties agree, and I am satisfied, that pursuant to s 4.55(2)(a) of the EPA Act, the amended MA remains substantially the same as the parent DA. The amendments are relatively minor, there is no change to the proposed use, no change to the number of levels, no change to the number of dwellings, no change to the approved building height, and the general appearance of the building continues to present as residential apartment development. Impacts of cross viewing, views and solar access are agreed to be substantially the same as those arising from the parent DA.

13. The parties agree, and I am satisfied, that the MA was publicly notified between 3 and 17 August 2023 in accordance with the Respondent’s Community Participation Plan and one submission was received. This submission has been appropriately considered as required by s 4.15(1)(d) of the EPA Act.

14. Of particular note, the MA has been amended by the Applicant during the conciliation conference to resolve contentions pressed by the Respondent. These contentions included issues including view impacts, cross viewing, a diminished presentation to the public domain, objection to the proposed swimming pool at Apartment 03, reduced communal open space, and a diminished landscape design.

15. Amendments to the MA include design changes to resolve cross viewing, provide adequate internal amenity to apartments and deletion of the proposed swimming pool at Apartment 03.

16. The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is a relevant environmental planning instrument. The site is zoned R3 Medium Density Residential and the approved development - characterised as residential apartment development - is permissible with consent, and that the amended MA maintains the objectives of the R3 zone.

17. The parties agree, and I am satisfied, that pursuant to s 4.55(3) of the EPA Act the reasons for the grant of consent for the parent DA (as set out in Barua v Randwick) have been appropriately considered.

18. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). Pursuant to s 100(3) for the EPA Reg, an amended BASIX certificate, 1174162M_09, dated 12 December 2023, has been submitted with the MA. Conditions of consent are imposed to ensure compliance with the BASIX certificate.

19. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65).

20. Pursuant to s 102 of the EPA Reg, the Applicant's architect, Studio Johnston and its nominated architect, Mr Conrad Johnston (NSW registered architect 8270), has prepared a Design Verification Statement dated 12 December 2023, confirming that the amended MA does not diminish or detract from the design quality or compromise the design intent of the parent DA for which consent was granted, and stating how the design quality principles of SEPP 65, and the objectives of Parts 3 and 4 of the NSW Apartment Design Guide have been achieved.

21. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

22. The Court notes that:

1. Pursuant to s 113 of the EPA Reg, the Applicant has amended the MA with the approval of the Court.

2. The Applicant has lodged the amended MA with the Court on 5 February 2024.

Orders

23. The Court orders that:

1. Consent is granted to Modification Application DA676/2019/B (as amended).

2. Development Consent DA676/2019 is modified in the terms set out at Annexure A.

3. Development Consent DA676/2019 as modified by the Court is set out at Annexure B.

M Pullinger

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 05 March 2024