Happy 2 Pty Ltd v Randwick City Council

[2022] NSWLEC 1346

Land and Environment Court

New South Wales

Medium Neutral Citation:

Happy 2 Pty Ltd v Randwick City Council [2022] NSWLEC 1346

Hearing dates:

Conciliation conference on 21 and 22 June 2022

Date of orders:

05 July 2022

Decision date:

05 July 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.
(2) Development Application DA 640/2021 for demolition of existing structures and construction of two semi-detached dwellings, Torrens title subdivision, landscaping and associated works at 451 Beauchamp Road Maroubra is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – semi-detached dwellings – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34, 34AA
Randwick Local Environmental Plan 2012, cll 2.7, 6.4, 6.10
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards), cl 4.6

Texts Cited:

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Happy 2 Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Pike Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/48678

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Happy 2 Pty Ltd (Applicant) against the Respondent’s deemed refusal of Development Application No. DA/640/2021 with Randwick City Council on 15 October 2021.

2. The development application seeks consent for the demolition of existing structures, excavation works and construction of semi-detached dwellings with basement parking, associated landscaping, retaining walls and driveway works. The development is to be constructed on Lot 402 in DP 235632, known as 451 Beauchamp Road, Randwick.

3. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 21 and 22 June 2022.

4. As part of the Court process, the parties undertook a site view. The parties heard oral submissions from neighbours regarding the proposed development. Whilst a number of issues were raised, privacy and solar access impacts, were key aspects of the oral and written submissions. I note that the amendments made to the application as part of the proceedings reflect improved outcomes on these issues.

5. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to conditions.

6. Pursuant to s 34(3) of the LEC Act (which applies by virtue of s 34AA(2) of the LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Randwick Local Environmental Plan 2012 (RLEP 2012), the subject site is zoned R3 Medium Density Residential. Demolition is permissible pursuant to cl 2.7 of RLEP 2012. In determining the development application, I have had regard to the objectives of the zone.

2. The proposed development does not contravene a development standard in RLEP 2012, nor in any other applicable environmental planning instrument.

3. The requirements in cl 6.4(3) of RLEP 2012 concerning stormwater management are satisfied having regard to the deep soil area provided on site and the requirement for provision of an on-site stormwater detention system. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

4. The requirement in cl 6.10 of RLEP 2012 that the following services that are essential for the development are available, or that adequate arrangements have been made to make them available when required is satisfied having regard to the information provided, the design of the development and the conditions to be imposed:

1. the supply of water,

2. the supply of electricity,

3. the disposal and management of sewage,

4. stormwater drainage or on-site conservation,

5. suitable vehicular access.

5. The application was advertised and notified for 14 days from 21 October 2021 to 11 November 2021. Notification requirements under the EPA Act and Randwick Comprehensive Development Control Plan 2013 have been satisfied.

6. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

7. Consideration has been given to whether the Site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The proposed works do not include any change to the use of land that would result in concern with respect to contamination as the Site has a long history of residential use.

9. 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’ agreement.

10. I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

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

1. The appeal is upheld.

2. Development Application DA 640/2021 for demolition of existing structures and construction of two semi-detached dwellings, Torrens title subdivision, landscaping and associated works at 451 Beauchamp Road Maroubra is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

……………………….

Stuart Harding

Acting Commissioner of the Court

Annexure A (395015, pdf)

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Decision last updated: 05 July 2022