Georgees v Randwick City Council

[2024] NSWLEC 1836

Land and Environment Court

New South Wales

Medium Neutral Citation:

Georgees v Randwick City Council [2024] NSWLEC 1836

Hearing dates:

Conciliation Conference on 3-4 December 2024

Date of orders:

23 December 2024

Decision date:

23 December 2024

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA192/2023, for the retention of existing stables at the rear of the site with the exception of the replacement of the roof, and construction of a two-storey attached dual occupancy and associated site works at 7 Ingram Street, Kensington, identified as Lot 37 in Section 10 in Deposited Plan 5759 is determined by the grant of consent, subject to the conditions of consent set out at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties – dual occupancy development in R2 low density zone

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 279

Randwick Local Environmental Plan 2012, cl 4.3, 4.4, 5.10, 6.2, 6.4, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 2.6, 6.6, 6.7, 6.8, Ch 6

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

Category:

Principal judgment

Parties:

Salem Georgees (First Applicant)
Justin Long (Second Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
M Astill (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2024/200273

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA192/2023 (DA).

2. Development Application No. DA192/2023, as amended, is for the retention of existing stables at the rear of the site with the exception of the replacement of the roof, and construction of a two-storey attached dual occupancy and associated site works at 7 Ingram Street, Kensington, identified as Lot 37 in Section 10 in Deposited Plan 5759.

3. The subject site is occupied by an L-shaped single storey former stables building, with brick walls and terracotta tile roof, located at the rear of the site. It is within an established residential area of mainly single and two storey houses. The site is within the West Kensington Heritage Conservation Area.

4. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 3-4 December 2024. I presided over the conciliation conference.

5. On the basis of amended documentation and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 4 December 2024.

6. 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 4.16 of the EPA Act to grant consent to the development application.

7. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Background

8. The DA was lodged with the Council on 26 May 2023, seeking approval for the partial demolition of the existing stables and the construction of 2 x 2 semi-detached dwellings with swimming pools and associated Torrens title subdivisions.

9. On 25 January 2024, the DA was amended to seek consent for an attached dual -occupancy development with no subdivision of the site.

10. On 9 May 2024 the Randwick Local Planning Panel determined the application by way of refusal.

11. On 30 May 2024 the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court’s jurisdiction.

Jurisdictional matters

Planning Framework

Randwick Local Environmental Plan 2012

12. The Randwick Local Environmental Plan 2012 (RLEP) was amended on 1 September 2023. As the development application was made under RLEP 2012, which has a savings provision (cl 1.8A(3)), RLEP 2012 is the applicable planning instrument.

13. The site is located within the R2 General Residential zone, pursuant to RLEP 2012.

14. Consent for dual occupancy development is permitted where the proposal is consistent with the objectives of the zone, which are:

• To provide for the housing needs of the community within a low 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 building.

15. I am satisfied that the proposed development, which has been the subject of consideration and input from planning and heritage experts, is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

16. Clause 4.3 (height of buildings) of RLEP 2012 provides for a maximum building height of 9.5 metres. The parties agree, and I am satisfied, that amended plans indicate a maximum height of the proposal as 8.5 metres which complies with this standard.

17. Pursuant to cl 5.10 (Heritage Conservation) of the RLEP 2012, I am satisfied that consideration has been given by the parties to the effect of the proposed development on the heritage significance of the heritage conservation area in accordance with cl 5.10(4), through their assessment of the joint report of heritage experts (Kovacs and Danis, 4 November 2024). I note that amended proposal result in the retention of the form and much of the fabric of the stables building, and that the conditions of consent incorporate heritage management measures including the preparation of a schedule of conservation works (condition 8) and on-site monitoring by a built heritage specialist (condition 54).

18. Clause 6.2 applies, as the development application seeks consent for earthworks. On the basis of the Geotechnical Investigation Report (White Geotechnical Group, 17 May 2023), the Stormwater Erosion and Sediment Control Plan and Details (Loka Consulting Engineers, Drawing D03, 15 November 2024), and along with the conditions of consent (including conditions 17, 26, 27, 29, 39 and 43), I conclude that the earthworks to be satisfactorily addressed in terms of erosion, sediment control and excavation.

19. Clause 6.4 contains controls for stormwater management. On the basis of the Stormwater Concept Plans (Loka Consulting Engineers) and the Landscape Plan (Total Concept Landscape Architects, 25 November 2024), I accept that the development is designed to maximise the use of water permeable surfaces and includes on-site stormwater detention so as to avoid significant adverse impacts of stormwater runoff on adjoining properties.

Contravention of Floor Space Ratio (FSR) development standard

20. Clause 4.4(2) of the RLEP prescribes the maximum FSR of 0.5:1 for the development. The amended DA has a FSR of 0.6:1, in breach of the FSR development standard.

21. The amended DA relies on a cl 4.6 written request seeking to justify the contravention of the FSR development standard (Updated Clause 4.6 Report, ABC Planning Pty Ltd, December 2024).

22. Clause 4.6(3) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent, which are:

1. (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

23. The applicant’s written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary as:

• Although the applicable FSR is 0.5:1, as a result of amendment 9 to RLEP 2012, which came into effect on 1 September 2023, the current planning controls permit an FSR of 0.6:1. On this basis, the overall form and scale of the proposal is in keeping with the desired future character of the area as it aligns with the FSR envisaged by the current controls.

• The elements of the proposed development that result in the non-compliance will not be discernible from the streetscape, and the proposed building height and bulk is of an appropriate form and scale and is compatible with the streetscape.

• The additional FSR does not result in any unacceptable environmental amenity impacts, including adverse impacts on privacy or overshadowing.

• The proposal achieves the objectives of the development standard notwithstanding non-compliance with the standard.

24. Having reviewed the cl 4.6 request, I am satisfied that the applicant’s written request for a variation of the FSR standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) and I am satisfied that there are sufficient environmental planning grounds to justify the non-compliance, and that strict compliance with the standard would be both unreasonable and unnecessary. The proposed development is consistent with the objectives of the R2 zone, and the FSR objectives at cl 4.4(1).

25. I am therefore satisfied that a variation in the cl 4.4 FSR development standard should be granted.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

26. I have considered whether the site is contaminated in accordance with s 4.6 of the RH SEPP. On the basis of the Statement of Heritage Impact (Archnex Designs, April 2023) and the Amended Statement of Environmental Impact (ABC Planning, January 2024) that accompanied the DA, I accept that the site has been vacant apart from the stables as ancillary to residential purposes for a substantial period of time and is unlikely to be contaminated, and therefore considered suitable for the purpose for which development is proposed to be carried out.

Environmental Planning and Assessment Regulation 2021

27. Pursuant to s 27 of the EPA Regulation, the application is accompanied by a BASIX certificate (no. 1774365M dated 23 November 2024), prepared by Elias Aboutannous.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

28. Chapter 2 – Vegetation in non-rural areas - of the Biodiversity SEPP applies. On the basis that the proposal does not involve the removal of any significant vegetation (Arboricultural Impact Assessment report (Heartwood Tree Consulting, 19 April 2023) and that it provides for the introduction of additional vegetation to the site, the proposal complies with the aims of Chapter 2 of the SEPP. The grant of development consent serves as a permit for the removal of trees pursuant to s 2.6(1).

Other considerations

29. I note the advice of the parties that landowner’s consent for the development application has been provided, and that the DA was publicly exhibited for 14 days from 8 June 2024, and that four written submissions were received.

30. I have considered the submissions, and I am satisfied that the parties have taken into consideration these submissions based on their assessment of, and agreement to, the amended documents.

Conclusion

31. Having considered the above, along with the jurisdictional statement provided by the parties to the Court to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied, I am satisfied that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

32. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

33. 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.

34. The Court notes that:

1. the Respondent, Randwick City Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA/192/2023 to rely on the documents below:

Plan	Drawn by	Dated
Architectural
Title Page, General Notes & Schedule of External Finishes, A00, Amendment F	Justin Long Design	3/12/24
Proposed Ground Floor Plan, A02, Amendment F	Justin Long Design	3/12/24
Proposed First Floor Plan, A03, Amendment F	Justin Long Design	3/12/24
Proposed Landscape & Stables Plan, A04, Amendment F	Justin Long Design	3/12/24
Stables Demolition Plan A04A, Amendment F	Justin Long Design	3/12/24
Proposed Elevations, A05 Amendment F	Justin Long Design	3/12/24
Proposed Elevations, A05A, Amendment F	Justin Long Design	3/12/24
Proposed Elevation & Section, A06, Amendment F	Justin Long Design	3/12/24
Proposed Section, A07, Amendment F	Justin Long Design	3/12/24
Proposed Roof & Stormwater Drainage Concept Plan, A08, Amendment F	Justin Long Design	3/12/24
Site, Site Analysis & Landscape Plan, A09, Amendment F	Justin Long Design	3/12/24
Door & Window Schedule 7A, W01, Amendment F	Justin Long Design	3/12/24
Door & Window Schedule 7B, W02, Amendment F	Justin Long Design	3/12/24
Landscape Plans
Proposed Landscape Plan, L/01B	A Total Concept	25/11/2024
Landscape Specification, L/02B	A Total Concept	25/11/2024
Stormwater Plans
Cover Sheet, Legend & Drawing Schedule, DOO, Rev C	Loka Consulting Engineers Pty Ltd	18/11/2024
Ground Floor/Site Stormwater Drainage Plan, DO1, Rev F	Loka Consulting Engineers Pty Ltd	19/11/2024
Site Stormwater Drainage Details 1, DO2-1, Rev E	Loka Consulting Engineers Pty Ltd	19/11/2024
Site Stormwater Drainage Details 2, DO2-2, Rev D	Loka Consulting Engineers Pty Ltd	18/11/2024
Erosion And Sediment Control Plan and Details, DO3. Rev C	Loka Consulting Engineers Pty Ltd	15/11/2024
Catchment Plan, DO4, Rev A	Loka Consulting Engineers Pty Ltd	18/11/2024
Music Results and Details, DO5, Rev A	Loka Consulting Engineers Pty Ltd	18/11/2024

Reference	Description	Author/Drawn	Date(s)
Clause 4.6 request
Updated clause 4.6 to clause 4.4 of the Randwick LEP 2012 FSR variation	Clause 4.6 request	Anthony Betros ABC Planning	12. 2024
Structural engineering
Structural engineering report – Existing Old Stables Building	Engineering report	AE Engineers	19.11.24
BASIX certificate
BASIX certificate 1774365M	BASIX	Elias Aboutannous	23.11.24
Owners consent
Owners consent provided by Andrew Issa	Owners consent	Andrew Issa	26.11.24

Orders

35. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. DA192/2023, for the retention of existing stables at the rear of the site with the exception of the replacement of the roof, and construction of a two-storey attached dual occupancy and associated site works at 7 Ingram Street, Kensington, identified as Lot 37 in Section 10 in Deposited Plan 5759 is determined by the grant of consent, subject to the conditions of consent set out at Annexure A.

………………….

Niall Macken

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 23 December 2024