Jones v Randwick City Council

[2024] NSWLEC 1356

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jones v Randwick City Council [2024] NSWLEC 1356

Hearing dates:

Conciliation Conference 20 June 2024

Date of orders:

26 June 2024

Decision date:

26 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA/591/2022 for alterations and additions to the existing semi-detached dwelling including double garage, roller door, bathroom, gym, rumpus, laundry & storage areas to basement level; open plan kitchen , living, dining & pantry areas outside entry with storage, powder room & guest bathroom, outdoor entertainment deck area with pool, to ground level, one bedroom with courtyard, ensuite & robe, master bedroom with ensuite, walk-in-robe & balcony to first floor level, associated landscaping at 21 Northumberland Street, Clovelly, is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to semi-detached dwelling – conciliation conference – agreement between the parties - orders

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, ss 23, 27, 38

Randwick Local Environmental Plan 2012, cll 4.4, 4.4A, 5.10, 5.21, 6.1, 6.2, 6.4, 6.7, 6.10

State Environmental Planning Policy (Building Sustainability Index) 2004

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Texts Cited:

Community Participation Plan

Category:

Principal judgment

Parties:

Nadia Jones (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
V McGrath (Solicitor)(Respondent)

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

File Number(s):

2023/432800

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA/591/2022 for alterations and additions to semi-detached dwelling (the Proposed Development) at 21 Northumberland Street Clovelly legally described as Lot 1 DP 588650 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 20 June 2024. I presided over the conciliation conference.

3. The conciliation conference commenced on site and neighbouring residents presented their concerns regarding view sharing and privacy impacts by the Proposed Development as filed with the Class 1 Application. The Proposed Development had been notified in accordance with the Respondent’s Community Participation Plan concluding on 16 January 2023 and a copy of the five submissions received are located at Tab 3 of the Respondent’s Bundle of Documents filed with the Court.

4. The parties considered all written and oral submissions together with the contents of the Joint Export Report (JER) prepared by expert town planners R Read for the Respondent and L Kosnetter for the Applicant filed with the Court.

5. 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.

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. 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.

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

8. 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 in an agreed jurisdictional statement from which I summarise below.

9. The owners of the Site have consented to the making of the development application pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) as evidenced in the Class 1 Application filed with the Court.

10. The site is zoned R2 Low Density Residential and pursuant to the Land Use Table of the Randwick Local Environmental Plan 2012 (RLEP) the Proposed Development is permissible with consent.

11. Pursuant to RLEP the Height of Buildings Map, the Site is mapped as being subject to a maximum building height development standard of 9.5m. Measured from ground level (existing), the proposed development stands at RL 43.35 (approximately 8.2m) at its highest point as depicted in the 3D Height Plane Dwg No. DA3.02 Rev C.

12. Pursuant to subcl 4.4(2) of the RLEP, the Site is identified as having a maximum floor space ratio (FSR) development standard of 0.5:1 however, cl 4.4A(4) provides that subcl 4.4(2) does not apply to a dwelling house or semi-detached dwelling on a lot in Zone R2 Low Density Residential if the lot size is 300m² or less. The Site has a total area of 268m², the FSR development standard does not apply.

13. The Site is not identified as a heritage item, is not in the immediate vicinity of any listed state or local heritage items, nor is it located within a heritage conservation area (cl 5.10, RLEP).

14. The Site is not identified within the flood planning area (cl 5.21, RLEP) and the Site is not identified as being affected by acid sulfate soils (cl 6.1, RLEP).

15. The matters for consideration set out in cl 6.2(3) of the RLEP regarding earthworks are deemed acceptable by the Respondent because these matters have been considered in the Geotechnical Investigation Report prepared by Geotechnical Consultants Australia dated 18 June 2024 which considers the quality, volume and management of material to be excavated at pp 20-22.

16. Pursuant to cl 6.4(3) of the RLEP, development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a)  is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact, and

(d)  incorporates, if practicable, water sensitive design principles.

17. In satisfaction of cl 6.4 regarding stormwater management, the Applicant has prepared an updated set of stormwater plans listed in the table below at [26] and in further satisfaction of the matters in which the consent authority must be satisfied, the Applicant’s stormwater engineer has provided a Supplementary Stormwater (cl 6.4) Letter prepared by Gilcon Structural Engineers dated 18 June 2024 responsive to the matters outlined under subcl 6.4(3)(a)-(d).

18. The Site is identified as being within the “foreshore scenic protection area” pursuant to cl 6.7 of the RLEP and subcl 6.7(3) provides that:

Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the development—

(a)  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

(b)  contributes to the scenic quality of the coastal foreshore.

19. In that regard, the parties have agreed that the Proposed Development, as amended, is designed to minimise its visual impact by way of setbacks and height of building, and incorporates a considered finishes and material schedule to fit within its context and contribute to the scenic quality of the surrounding locality.

20. The Site is currently serviced by all relevant utilities contemplated under cl 6.10 of the RLEP, which are presently utilised by the existing residential dwelling.

21. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) a consent authority must be satisfied that appropriate consideration has been given to whether the Site is contaminated, its suitability for the Proposed Development and whether satisfactory measures are put into place to remediate the land should it be required to do so. The Applicant has provided a Supplementary Statement of Environmental Effects dated 12 June 2024 as evidence that the Site is not identified on the POEO register as being potentially contaminated, is not identified being affected by acid sulfate soils, and has been used for residential purposes since before 1943. Accordingly, the Court as the consent authority is satisfied that the Site is not contaminated and that no change of use is proposed.

22. The Proposed Development is 'BASIX affected development' for the purposes of s 27 of the EPA Regulation. The Proposed Development is captured by the savings and transitional provision set out in s 4.2(1)(a) of the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable SEPP), so remains subject to the provisions of the State Environmental Planning Policy (Building Sustainability Index) 2004 (BASIX SEPP). In compliance with the relevant requirements under the BASIX SEPP, the Applicant has provided an updated BASIX Certificate.

23. 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. I adopt the reasons given by the parties in the terms as I have set out in this judgment.

24. 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.

Notations:

25. The Court notes:

1. Randwick City Council, as the relevant consent authority has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 the amendment of Development Application DA/591/2022 in accordance with the documents listed below:

No.	Drawing No	Drawing Title	Prepared By	Date
Architectural Plans
1.	DA2.02 Rev F	Basement Floor Plan	Bayside Built	19.06.2024
	DA2.03 Rev F	Ground Floor Plan	Bayside Built	19.06.2024
	DA2.04 Rev E	First Floor Plan	Bayside Built	04.06.2024
	DA2.05 Rev E	Roof Plan	Bayside Built	04.06.2024
	DA3.01 Rev F	General Sections	Bayside Built	18.06.2024
	DA3.02 Rev C	3D Height Plane (including section)	Bayside Built	04.06.2024
	DA4.01 Rev E	General Elevations	Bayside Built	04.06.2024
	DA4.02 Rev E	General Elevations	Bayside Built	04.06.2024
	DA6.11 Rev C	Terracotta Façade Details	Bayside Built	04.06.2024
	DA7.01 Rev C	Materials and Finishes Schedule	Bayside Built	04.06.2024
	DA7.02 Rev D	Waste Management Plan	Bayside Built	18.06.2024
Landscape Plans
2.	DA6.01 Rev D	Landscape Plan	Bayside Built	04.06.2024
Stormwater Plans
3.	220873 – C01 – Rev C	General & Site-Specific Notes, Roof Drainage Plan	Gilcon Structural Engineers	18.06.2024
	220873 – C02– Rev C	First Floor & Ground Floor Drainage Layout	Gilcon Structural Engineers	18.06.2024
	220873 – C03– Rev C	Basement Drainage Layout, Drainage Details & Calculations	Gilcon Structural Engineers	18.06.2024
Supporting Documentation
No.	Document			Date
4.	Updated Geotechnical Investigation Report G22478-1-Rev B prepared by GCA			18 June 2024
5.	Supplementary Stormwater (cl 6.4) Letter prepared by Gilcon Structural Engineers			18 June 2024
6.	Supplementary SEPP (Resilience and Hazards) Assessment prepared by LK Planning			12 June 2024
7.	BASIX Certificate No. A476740_03 prepared by Bonnefin Consulting			18 June 2024

2. The amended development application was filed with the Court on 20 June 2024.

Orders:

26. The Court orders:

1. The appeal is upheld.

2. Development Application DA/591/2022 for alterations and additions to the existing semi-detached dwelling including double garage, roller door, bathroom, gym, rumpus, laundry & storage areas to basement level; open plan kitchen , living, dining & pantry areas outside entry with storage, powder room & guest bathroom, outdoor entertainment deck area with pool, to ground level, one bedroom with courtyard, ensuite & robe, master bedroom with ensuite, walk-in-robe & balcony to first floor level, associated landscaping at 21 Northumberland Street, Clovelly, is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 26 June 2024