Marshall v Randwick City Council

[2022] NSWLEC 1383

Land and Environment Court

New South Wales

Medium Neutral Citation:

Marshall v Randwick City Council [2022] NSWLEC 1383

Hearing dates:

Conciliation conference on 14 June 2022

Date of orders:

20 July 2022

Decision date:

20 July 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely on the written clause 4.6 of the Randwick Local Environmental Plan 2012.

(2) The Applicant’s written request pursuant to clause 4.6 of RLEP seeking to justify contravention of the height of buildings standard under clause 4.3 of the Randwick Local Environmental Plan 2012 has been considered and the necessary opinion of satisfaction formed under clause 4.6(4) of RLEP.

(3) The appeal is upheld.

(4) Development Consent is granted to DA/118/2021 for the use of the existing roof area to provide two roof terraces over an existing residential unit, construction of balustrades and associated works at 303 Malabar Road, Maroubra, subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – Rooftop terrace – residential flat building – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.66, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 4.3, 4.6, 6.7

Category:

Principal judgment

Parties:

Shane Stephen Marshall (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

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

File Number(s):

2021/339264

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Randwick City Council (the Respondent) of Development Application No 118/2021 seeking consent for the use of existing roof area to provide 2 x roof terraces over existing residential units, construction of balustrades and associated works at 303 Malabar Road, Maroubra (the site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 June 2022, and at which I presided.

3. Prior to 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.

4. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 9 June 2022.

5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [19], and as follows:

7. The site is located within the R2 Low Density Residential zone according to the Randwick Local Environmental Plan 2012 (RLEP), in which the existing form of multi dwelling housing is not permitted, but is subject to an existing consent granted pursuant to development application No DA 526/2003 and the continuance of that use is permitted by operation of s 4.66(1) of the EPA Act.

8. The objectives of the R2 zone 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 buildings.

9. The proposed development exceeds the height standard of 9.5m that is applicable to the site under cl 4.3 of the RLEP, and the Applicant relies upon a written request authored by ABC Planning dated May 2022, prepared in accordance with cl 4.6 of the RLEP to justify the contravention of the standard.

10. The objectives of the height standard are, relevantly:

(a)  to ensure that the size and scale of development is compatible with the desired future character of the locality,

…

(c)  to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.

11. I am satisfied the written request adequately addresses those matters required to be demonstrated by cl 4.6(3)(a) of the RLEP because, firstly of the manner in which the height is measured when existing excavation is considered, and as a result of the location of the exceedance not adversely impacting the visual bulk and due to the exceedance being predominantly balustrade and planter elements which, by their arrangement, do not adversely impact on the amenity of adjoining and neighbouring land in terms of loss of privacy, overshadowing or views when view impact analysis drawings are considered.

12. I am also satisfied that there are sufficient environmental planning grounds, within the terms of cl 4.6(3)(b) of the RLEP for the same reasons as those summarised above, and because of the analysis set out at p 19 of the written request as to the indiscernible visibility of the proposed development within the Foreshore scenic protection area.

13. As I am satisfied that resident amenity is protected, and that the proposal is consistent with the character of the area, adjoining the B1 Neighbourhood Centre, I am also satisfied that the proposed development is consistent with the objectives of the R2 zone, and that because of the consistency with the same, and with the objectives of the standard at [10], I am satisfied that the proposed development is in the public interest pursuant to cl 4.6(4)(a)(ii) of the RLEP.

14. Furthermore, I have considered the grounds at cl 4.6(5) of the RLEP and find no reason that concurrence of the Secretary would not be granted and so I am satisfied that the written request should be upheld.

15. As the site is located within the Foreshore Scenic protection area, I am also satisfied that the proposed development 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 by this, also contributes to the scenic quality of the coastal foreshore pursuant to cl 6.7 of the RLEP.

Conclusion

16. 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.

17. 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.

18. The Court notes that:

1. Randwick City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA/118/2021 in accordance with the documents listed below:

2. The amended development application documents listed above were lodged on the NSW planning portal on 6 June 2022.

3. The amended development application was filed with the Court on 9 June 2022.

Orders

19. The Court orders that:

1. Leave is granted to the Applicant to rely on the written clause 4.6 of the Randwick Local Environmental Plan 2012.

2. The Applicant’s written request pursuant to clause 4.6 of RLEP seeking to justify contravention of the height of buildings standard under clause 4.3 of the Randwick Local Environmental Plan 2012 has been considered and the necessary opinion of satisfaction formed under clause 4.6(4) of RLEP.

3. The appeal is upheld.

4. Development Consent is granted to DA/118/2021 for the use of the existing roof area to provide two roof terraces over an existing residential unit, construction of balustrades and associated works at 303 Malabar Road, Maroubra, subject to conditions contained in Annexure ‘A’.

……………………

T Horton

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 20 July 2022