Cuda v Randwick City Council

[2023] NSWLEC 1200

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cuda v Randwick City Council [2023] NSWLEC 1200

Hearing dates:

Conciliation conference on 17-18 April 2023

Date of orders:

28 April 2023

Decision date:

28 April 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely on the Amended Application for demolition and works to an existing dwelling to allow for additional storeys and a swimming pool to the rear of the dwelling at 27 Endeavour Avenue, La Perouse, in accordance with the documents listed in Annexure B.

(2) The appeal is upheld.

(3) Development Application No. DA/197/2022 for demolition and works to an existing dwelling to allow for additional storeys and a swimming pool to the rear of the dwelling at 27 Endeavour Avenue, La Perouse, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

Catchwords:

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

Legislation Cited:

Coastal Management Act 2016, s 5

Environmental Planning and Assessment Act 1979, ss 416, 8.7

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 5.10. 6.2, 6.4, 6.7

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2,4, ss 2.10,2.11

Category:

Principal judgment

Parties:

Steven Cuda (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
S Flannigan (Respondent)

Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s):

2022/379743

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the actual refusal by Randwick City Council (the respondent) of development application 197/2022 for works to the existing dwelling to allow for an additional storey, swimming pool to the rear and minor façade changes at 27 Endeavour Avenue, La Perouse, Lot 290 in DP 752015.These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

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 17 & 18 April 2023. I presided over the conciliation conference.

3. At the conciliation conference, 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. Through the course of the conciliation, the Applicant amended their application to incorporate revised drawings and a revised description of the development. The application now seeks consent for demolition and works to an existing dwelling to allow for additional storeys and a swimming pool to the rear of the dwelling at 27 Endeavour Avenue, La Perouse, in accordance with the documents listed in Annexure B. This amendment has occurred by agreement of Randwick City Council, as the relevant consent authority, under s.37(1) of the Environmental Planning and Assessment Regulation 2021.

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 one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 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 and explained how the jurisdictional prerequisites have been satisfied. From this I note the following:

1. The consent of the owner, Steven Cuda, was given with the development application and filed with the Class 1 application.

2. Pursuant to s 5(c) and (d) of the Coastal Management Act 2016, the site is located within a coastal zone as it is mapped as partly ‘Coastal Environment Area’ and partly ‘Coastal Use Area’ under State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). Subsequently, this development is subject to assessment under Ch 2 of the Resilience and Hazards SEPP. Based on the parties’ submissions, information in the Statement of Environmental Effects (SEE) and the amended application, I accept that the relevant matters listed in ss 2.10 and 2.11 of the Resilience and Hazards SEPP have been considered, and that none of the adverse impacts referred to in these sections arise as a result of the proposed development within the ‘Coastal Environment Area’ or ‘Coastal Use Area’.

3. Chapter 4 of the Resilience and Hazards SEPP requires the Court to consider whether the land is contaminated and, if so, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. The parties submit and, based on this and the information contained in the SEE, I am satisfied that the land has been in residential use since its original subdivision, there is no evidence of any potentially contaminating uses occurring, and it is reasonable to conclude there is no likelihood of contamination on the land.

4. Pursuant to the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an amended BASIX certificate has been provided that relates to the amended application.

5. Pursuant to the Randwick Local Environmental Plan 2012 (RLEP), the land that forms the subject site is zoned R2 within which development for the purpose of a dwelling house is permissible with consent.

6. The proposed development does not offend any of the relevant development standards in the RLEP, including cl 4.3 - Height of Buildings and cl 4.4 - Floor Space Ratio.

7. Pursuant to RLEP cl 5.10 - Heritage Conservation, although the subject site is located within the vicinity of a Heritage Conservation Area (HCA), the parties submit and I accept that the proposed development will not impact the HCA, and a heritage assessment is not required.

8. RLEP cl 6.2 - Earthworks identifies a number of mandatory considerations prior to the granting of development consent. Based on the parties’ submissions, the Applicant’s Geotechnical Investigation Report, and the additional letter from GEC Geotechnical, dated 14 April 2023, I am satisfied that with the application of the relevant conditions of consent, the earthworks that form part of this proposed development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

9. Based on the parties’ submission and the imposition of condition 16, I am satisfied that the requirements of RLEP cl 6.4 - Stormwater Management are met with the proposed development.

10. Pursuant to RLEP cl 6.7 - Foreshore Scenic Protection Area, based on the amended drawings, the site view and the parties’ submissions, I am satisfied that the proposed development is located and designed to minimise its visual impact on public areas of the coastline including views to and from the coast, foreshore reserves, open space and public areas, and that it contributes to the scenic quality of the coastal foreshore.

7. For these reasons, 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.

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.

9. The Court notes:

1. Randwick City Council, as the relevant consent authority, has agreed under s.37(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA/197/2022 in accordance with the documents listed in Annexure ‘B’ (‘Amended Application’).

2. The Applicant filed the Amended Application with the Court on 18 April 2023.

10. The Court orders:

1. Leave is granted to the Applicant to rely on the Amended Application for demolition and works to an existing dwelling to allow for additional storeys and a swimming pool to the rear of the dwelling at 27 Endeavour Avenue, La Perouse, in accordance with the documents listed in Annexure B.

2. The appeal is upheld.

3. Development Application No. DA/197/2022 for demolition and works to an existing dwelling to allow for additional storeys and a swimming pool to the rear of the dwelling at 27 Endeavour Avenue, La Perouse, is determined by the grant of development consent subject to the conditions of consent in Annexure ‘A’.

E Washington

Acting Commissioner of the Court

379743.22 Annexure A (370053, pdf)

379743.22 Annexure B (144990, pdf)

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Decision last updated: 28 April 2023