Leung Cha Pty Ltd v Randwick City Council

[2021] NSWLEC 1602

Land and Environment Court

New South Wales

Medium Neutral Citation:

Leung Cha Pty Ltd v Randwick City Council [2021] NSWLEC 1602

Hearing dates:

Conciliation on 8 October 2021

Date of orders:

14 October 2021

Decision date:

14 October 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The request pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) to dispense with compliance with the minimum subdivision lot size control in the RLEP is upheld.

(2) The appeal is upheld.

(3) Development consent to DA/148/2021 is granted for the Torrens title subdivision of the existing dual occupancy located at 34 – 34A Eyre Street, Chifley NSW 2036 into two (2) allotments (variation to minimum lot size of the RLEP) subject to the conditions of consent at Annexure A.

Catchwords:

APPEAL – development application – Torrens title subdivision – cl 4.6 request to vary minimum lot size – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979 ss 34, 34AA

Randwick Local Environmental Plan 2012 cll 4.1, 4.1D, 4.6

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cl 6.4

Category:

Principal judgment

Parties:

Leung Cha Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Lazarus SC (Applicant)
R White (Respondent)

Solicitors:
Bick and Steele (Applicant)
Randwick City Council (Respondent)

File Number(s):

2021/180104

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the Torrens title subdivision of land containing a dual occupancy at 34-34A Eyre Street, Chifley. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [14] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference commenced on 8 October 2021, and I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was reached following the provision of an amended request dated 7 October 2021, which is made pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (“RLEP 2012”), concerning the development standard for the minimum subdivision lot size.

The development standard and the history of approvals

4. The development standard for the subdivision of land is established by cl 4.1(3) of the RLEP 2012, pursuant to which the size of a lot resulting from a subdivision of land is “not to be less than the minimum size shown on the Lot Size Map” for that land. The applicable lot size map provides for minimum subdivision lot size of 400m². The proposed lots would contravene that development standard, with resulting lot sizes of 296.5m², and 298.6m².

5. The dual occupancy was built following the grant of development consent for its construction in 2010 (DA 425/2010).

6. The Council granted development consent for the Torrens title subdivision of the site in 2019 (DA 110/2019). The power to grant consent to the subdivision notwithstanding the breach of the minimum subdivision lot size development standard arose under cl 4.1D of the RLEP 2012. Clause 4.1D allows the subdivision of a site containing a dual occupancy where the consent for its construction was granted before 6 July 2018 and where the subdivision meets the development standards in cl 6.4 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“SEPP ECDC”).

7. Unfortunately, the applicant surrendered the consent for the Torrens title subdivision to the Council in March 2020, based on erroneous financial and taxation advice. In September 2020, the Council granted development consent for a strata subdivision.

8. In the development application before the Court, the applicant again seeks development consent for a Torrens title subdivision of the site.

9. Although cl 4.1D of the RLEP 2012 remains in place, the development standards set out in cl 6.4 of the SEPP ECDC have since been amended. Given that the parties agree that the Court has the power to grant development consent for the Torrens title subdivision of the site pursuant to cl 4.6 of the RLEP 2012 as a result of the amended written request and the unique planning history of the site, I am not required to consider whether the proposed subdivision meets the development standards in cl 6.4 of the SEPP ECDC that are now in place.

The agreement of the parties at the conciliation conference

10. The agreement reached by the parties was subsequently signed and filed on 11 October 2021, following the lodging of amended cl 4.6 request on the NSW Planning Portal with the agreement of the Council. The signed agreement is supported by a Statement of Reasons that sets out the reasons why Randwick City Council has agreed that development consent can be granted in accordance with the agreement.

11. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application subject to conditions of consent is a decision 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met. In particular, I am satisfied that development consent should be granted notwithstanding the contravention of the minimum subdivision lot size development standard. In accordance with cl 4.6(4)(a) of the RLEP 2012, I am satisfied that:

• The written request, lodged pursuant to cl 4.6 of the RLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach in the development standard by demonstrating that the earlier Torrens title subdivision approval was identical to what is now proposed, and was the subject of environmental assessment by the Council. Adherence to the standard on this application would therefore hinder a form of subdivision that the Council previously considered acceptable, and which was surrendered as a result of erroneous advice. As agreed by the Council, the request establishes that no different, or additional planning impacts would be created by the grant of the present development application when considered against the earlier consent.

• The written request demonstrates that compliance with the development standard is unreasonable and unnecessary as the objectives of the development standard are met notwithstanding the non-compliance, and the breach of the standard has no adverse impact.

• For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the minimum subdivision lot size development standard.

12. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

13. In making the orders to give effect to the agreement between the parties, 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.

14. The Court orders that:

1. The request pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) to dispense with compliance with the minimum subdivision lot size control in the RLEP is upheld.

2. The appeal is upheld.

3. Development consent to DA/148/2021 is granted for the Torrens title subdivision of the existing dual occupancy located at 34-34A Eyre Street, Chifley NSW 2036 into two (2) allotments (variation to minimum lot size of the RLEP) subject to the conditions of consent at Annexure A.

…………………….

J Gray

Commissioner of the Court

Annexure A (176463, pdf)

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Decision last updated: 15 October 2021