CMH Design Pty Ltd t/a CM Hairis Architects v Randwick City Council

[2019] NSWLEC 1136

Land and Environment Court

New South Wales

Medium Neutral Citation:	CMH Design Pty Ltd t/a CM Hairis Architects v Randwick City Council [2019] NSWLEC 1136
Hearing dates:	Conciliation conference on 21 – 22 March 2019
Date of orders:	29 March 2019
Decision date:	29 March 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See [14] below
Catchwords:	DEVELOPMENT APPLICATION: new dwelling house; conciliation conference; agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Category:	Principal judgment
Parties:	CMH Design Pty Ltd t/a CM Hairis Architects (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: I Pickles SC (Applicant)   Solicitors: Conomos Legal (Applicant) K Gerathy, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/269931
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by CMH Design Pty Ltd trading as CM Hairis Architect (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Randwick City Council (the Council) of development application DEV/178/2018 (the application).

2. The application seeks consent under the EPA Act for demolition of an existing dwelling and construction of a new 2-3 storey dwelling house, including pool and cabana, at Lot 20 in DP 8693, being 7 Undine Street, Maroubra (the site).

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

5. The LEC Act also requires me to set out in writing the terms of the decision; s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

6. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met.

7. The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the site has an area of some 470m² and is located on the eastern side of Undine Street. The site contains a 2 storey dwelling house.

8. The site is within the R2 Low Density Residential zone under the Randwick Local Environmental Plan 2012 (the LEP) and the proposed development is permissible with consent in that zone.

9. In the SFC, the Council raised a concern that the proposed new dwelling would exceed the floor space ratio (FSR) under the LEP resulting in an overdevelopment of the site. The written request to vary the FSR required to be lodged under cl 4.6 of the LEP to justify the exceedence was not considered by the Council to be well founded.

10. The Council also raised a number of merit contentions including inadequate side and rear setbacks and deep soil landscaping, streetscape impacts, and overshadowing and privacy impacts to neighbours. The major concern however, also raised in written objections to the application, was the view loss impacts to neighbouring properties in Undine Street, being views to the ocean from rear balconies and rooms of these properties.

11. In response to the contentions raised, the applicant undertook a view loss impact assessment from affected neighbouring properties and amended the application. A joint report filed by town planning experts indicated that the amended plans responded to the view loss assessment and resolved all contentions other than in terms of landscaping to the northern boundary. This included compliance with the FSR so that no cl 4.6 request was required.

12. Following viewing of the site and from 9 Undine Street, where neighbours advised they remained concerned with view and privacy impacts, further modifications were undertaken to the rear of the proposed dwelling, and in terms of the proposed landscaping at the rear. A condition of consent was also agreed between the parties in terms of the landscaping of the northern setback area.

13. A Certificate was also provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate.

14. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings, contained at annexure B.:

Drawing No.	Title/Description	Prepared by	Issue / Revision & Date
00C	Site Analysis	CM Hairis Architects	Rev C, dated 6 March 2019
01E	Proposed Site and Roof Plan	CM Hairis Architects	Rev E, dated 21 March 2019
02E	Proposed Basement and Ground Floor Plans	CM Hairis Architects	Rev E, dated 21 March 2019
03E	Proposed First Floor Plan and Section AA	CM Hairis Architects	Rev E, 21 March 2019
04E	Proposed Elevations	CM. Hairis Architects	Rev E, dated 21 March 2019
07C	External Finishes Schedule	CM Hairis Architects	Rev C, dated 21 March 2019
08D	GFA Calculations	CM Hairis Architects	Rev D, dated 21 March 2019

2. The appeal is upheld.

3. Development consent is granted to application DA178/2018 for the demolition of the existing dwelling and construction of a new two/three storey dwelling house including pool and cabana, subject to the conditions at annexure A.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A 

Annexure B 

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Decision last updated: 01 April 2019