Gallagher v Randwick City Council

[2019] NSWLEC 1210

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gallagher v Randwick City Council [2019] NSWLEC 1210
Hearing dates:	10 May 2019
Date of orders:	14 May 2019
Decision date:	14 May 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1) Leave is granted to the applicant to rely upon the following amended plans and documents: (a) Amended architectural plans prepared by Urban Future (Issue C dated 9 May 2019); (b) Amended BASIX Certificate dated 15 April 2019 (c) Amended Nationwide House Energy Rating Scheme Certificate dated 15 April 2019. (2) The appeal is upheld. (3) Condition 2(A) of the Development Application No DA/81/2018 is to be deleted subject to conditions annexed hereto and marked ‘A’.
Catchwords:	DEVELOPMENT APPEAL – against deemed refusal - conciliation conference – semi-detached dwelling development – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Patrick Michael Gallagher (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: Madison Marcus Lawyers (Applicant) Eakin McCaffery Cox Lawyers (Respondent)
File Number(s):	2019/9750
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the Conditions of Consent imposed on Development Consent DA/81/2018 for the demolition of an existing dwelling and construction of 2 x two-storey semi-detached dwellings, swimming pool, front and side boundary fencing, associated site works and 2 lot Torrens Title subdivisions at Lot 7 in Deposited Plan 15908 also known as 18 Ravenswood Avenue, Randwick NSW.

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 10 May 2019. 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 10 May 2019.

4. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

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 a decision that the Court could have made in the proper exercise of its functions. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [9]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. The site is located within the R3 Medium Density Residential zone as identified by the Randwick Local Environmental Plan 2012 (RLEP). The provisions of the R3 zone permit semi-detached dwellings development that is consistent with the objectives of the zone, which are as follows

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

•  To protect the amenity of residents.

•  To encourage housing affordability.

•  To enable small-scale business uses in existing commercial buildings.

2. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. I am satisfied that the history of the site is unlikely to have resulted in contamination.

3. The site is not subject to a minimum lot size as prescribed by cl 4.1 of the RLEP, and is not subject to a maximum floor space ratio under the provisions of cl 4.4(2B) which states “that there is no maximum floor space ratio for a dwelling house or semi-detached dwelling on a lot that has an area of 300 square metres or less”.

4. The proposed development is within the maximum height of 9.5m permitted by cl 4.3 of the RLEP.

6. As the jurisdictional prerequisites to the grant of consent have been addressed 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.

7. 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.

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

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted to the applicant to rely upon the following amended plans and documents:

1. Amended architectural plans prepared by Urban Future (Issue C dated 9 May 2019);

2. Amended BASIX Certificate dated 15 April 2019

3. Amended Nationwide House Energy Rating Scheme Certificate dated 15 April 2019.

2. The appeal is upheld.

3. Condition 2(A) of the Development Application No DA/81/2018 is to be deleted subject to conditions annexed hereto and marked ‘A’.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (439 KB, pdf)

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Decision last updated: 14 May 2019