Hoang v Randwick City Council

[2020] NSWLEC 1108

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hoang v Randwick City Council [2020] NSWLEC 1108
Hearing dates:	Conciliation conference on 2-3 March 2020
Date of orders:	10 March 2020
Decision date:	10 March 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders that: (1)   Leave is granted to the Applicant to rely on the architectural plans (revision H) prepared by Jennifer Sze Tho Architect dated 26 February 2020. (2) The Applicant’s written request under clause 4.6 of the Randwick Local Environmental Plan 2012 (“RLEP”), prepared by A Square Planning, dated 3 March 2020, seeking to justify the contravention of the floor space ratio development standard in clause 4.4 of the RLEP is upheld. (3)   The appeal is upheld. (4)   Development Application DA236/2019 seeking approval for alterations and additions to an existing garage to develop a first floor studio fronting Green Street at 119 Garden Street, Maroubra is approved subject to the conditions in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Minh Van Hoang (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: M Hoang (Litigant in person) (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/226851
Publication restriction:	No

Judgment

1. COMMISSIONER: Minh Van Hoang (the Applicant) has appealed the deemed refusal by Randwick City Council (the Respondent) of his development application (DA 236/2019) which sought consent for alterations and additions to an existing garage to develop a first floor studio (the Proposed Development), at 119 Garden Street, Maroubra (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 and 3 March 2020, and I presided over the conciliation conference.

4. 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 consent to the development application, subject to conditions.

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’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. The parties have explained how the Applicant’s amended plans have satisfied relevant jurisdictional matters, including in relation to the zoning of the land, site contamination, flooding and acid sulfate soils, along with the compliance of the Applicant’s Proposed Development, as amended, with other relevant standards within Randwick Local Environmental Plan 2012 (RLEP).

7. The parties have further explained how a contention in relation to an exceedance of the floor space ratio (FSR) development standard in RLEP has been addressed by the Applicant’s amended plans, and through the Applicant’s preparation of a written request for vary the FSR standard applicable to the Subject Site, pursuant to cl 4.6 of RLEP.

8. The Respondent has submitted, and I am satisfied, that the Applicant’s written request under cl 4.6 of RLEP should be upheld because it has demonstrated that:

1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, as the Proposed Development achieves the objectives of the FSR standard in cl 4.4 of RLEP, notwithstanding the proposed breach of that standard;

2. there are sufficient environmental planning grounds to justify contravening the development standard, because:

1. the additional gross floor area attributable to the Proposed Development would be located within the roof space of the garage structure:

2. and as a consequence of (a):

1. the FSR of the Proposed Development will not impact on the bulk and scale of the garage structure; and

2. the Proposed Development will not give rise to any adverse amenity impacts on adjoining properties;

3. the proposed development is an efficient use of space on the Subject Site; and as a consequence of the above points at (a) and (b), the proposed development would be consistent with the objects of the EP&A Act, in particular objectives (c) and (g) of that Act which are as follows:

(c) to promote the orderly and economic use and development of land; and

…

(g) to promote good design and amenity of the built environment.

3. The proposed development is consistent with the objectives of the R2 Low Density Residential zoning of the Subject Site, and in particular the following objectives:

• To provide for the housing needs of the community within a low density residential environment;

• To protect the amenity of residents.

9. As a consequence of my considerations above at [8], I find that the proposed development will be in the public interest because it is consistent with:

1. the objectives of the FSR standard with cl 4.4 of RLEP, and

2. the objectives for development within the R2 Low Density Residential zone within which the development is proposed to be carried out.

10. I am satisfied that there are no further jurisdictional prerequisites that must be satisfied before the functions under s 4.16 of the EP&A Act can be exercised by the Court.

11. 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.

12. 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.

13. The Court orders:

1. Leave is granted to the Applicant to rely on the architectural plans (revision H) prepared by Jennifer Sze Tho Architect dated 26 February 2020.

2. The Applicant’s written request under clause 4.6 of the Randwick Local Environmental Plan 2012 (“RLEP”), prepared by A Square Planning, dated 3 March 2020, seeking to justify the contravention of the floor space ratio development standard in clause 4.4 of the RLEP is upheld.

3. The appeal is upheld.

4. Development Application DA236/2019 seeking approval for alterations and additions to an existing garage to develop a first floor studio fronting Green Street at 119 Garden Street, Maroubra is approved subject to the conditions in Annexure “A”.

………………………

M Chilcott

Commissioner of the Court

Annexure A (71.7 KB, pdf)

**********

Decision last updated: 10 March 2020