Munro v Randwick City Council

[2023] NSWLEC 1716

Land and Environment Court

New South Wales

Medium Neutral Citation:

Munro v Randwick City Council [2023] NSWLEC 1716

Hearing dates:

Conciliation conference on 9 and 10 November 2023

Date of orders:

28 November 2023

Decision date:

28 November 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA/123/2022 for demolition of the existing dwelling, construction of a multi-storey dwelling including swimming pool, and associated landscaping and structures at 11 Mundarrah Street, Clovelly, is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – dwelling house – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Randwick Local Environmental Plan 2022, cll 2.1, 4.3, 4.4, 6.1, 6.2, 6.4, 6.7

Land and Environment Court Act 1979, ss 34, 34AA

Randwick Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 6.1, 6.2, 6.4, 6.7

State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

Category:

Principal judgment

Parties:

Russell Oscar Munro (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
S Flanigan (Respondent)

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

File Number(s):

2023/150177

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as the result of the actual refusal, by Randwick City Council of development application DA/123/2022, which seeks approval for the demolition of the existing dwelling to allow for the erection of a detached part two-storey, part three-storey dwelling with a swimming pool, landscaping and associated structures at 11 Mundarrah Street, Clovelly (the site). The proposal also entails the removal of one tree within the site and, as amended, one tree within Council’s road reserve.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

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 9-10 November 2023. I presided over the conciliation conference, at which the parties reached agreement as to the acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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, however 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 they have been satisfied. From this I note the following points.

5. The development application has been made by Russell Munro, who is the owner of the subject site and the applicant in these proceedings.

6. The development application was appropriately notified from 18 March to 1 April 2022, during which time ten submissions were received, including a petition containing 30 signatures. The parties submit, and I accept, that the relevant matters raised in these submissions have been adequately taken into consideration including, in particular, the relocation of the driveway to retain the existing melaleuca tree to Mundarrah Street, and the relocation of the swimming pool to address concerns regarding noise and privacy.

7. Pursuant to the Randwick Local Environmental Plan 2012 (RLEP), the subject site is zoned R2 Low Density Residential, within which development for the purpose of a dwelling house is permitted with consent. The proposed development is consistent with the objectives of this zone.

8. Demolition works are permissible with consent under RLEP cl 2.7.

9. RLEP cl 4.3 sets a maximum height of building control of 9.5m to the site. The proposed development is within this maximum height with a height of 8.2m.

10. RLEP cl 4.4 prescribes a maximum floor space ratio (FSR) for the site of 0.75:1, which the proposal meets by achieving this prescribed maximum.

11. Pursuant to RLEP cl 6.1, the site is not identified or mapped as being affected by acid sulfate soils and accordingly, no further action is required.

12. RLEP cl 6.2 requires consideration of the earthworks that are proposed as part of this development application. Based on the parties’ submission and the information contained in the geotechnical investigation report prepared by EI Australia, dated 3 November 2023, I accept that the matters set out in cl 6.2 have been adequately considered.

13. Based on the parties’ submission and the stormwater plans provided as part of the s 34 agreement, I accept that the stormwater management requirements of RLEP cl 6.4 have been adequately addressed in this application.

14. Pursuant to RLEP cl 6.7, the subject site is mapped as being within the ‘Foreshore Scenic Protection Area’. The parties submit, and I accept, that pursuant to RLEP cl 6.7(3), the proposed dwelling is unlikely to be observed from public areas of the coastline, and is considered to incorporate architectural finishes and materials that are appropriate to the context of the locality, and adequately contribute to the scenic quality of the coastal foreshore.

15. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties’ submission, I accept that the site has been historically used for residential purposes and there are no known actions that may have led to contamination of the subject site. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the site is suitable for its intended purpose.

16. A BASIX certificate has been filed with the amended application in accordance with State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004.

17. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the proposed development as it seeks to remove one existing trees on the subject site and one tree on the council-owned verge. Based on the parties’ submission and the assessment of these existing trees in the Arboricultural Assessment Report prepared by the Jacksons Nature Works dated 3 November 2022, I accept that the removal of these two trees is acceptable, and the proposed development is consistent with Ch 2 of the Biodiversity SEPP.

18. For these reasons, 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.

19. As the parties’ decision is one 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.

20. The Court notes:

1. Randwick City Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA/123/2022 in accordance with the documents listed below:

No.	Document	Date
1.	Amended Architectural Plans (Rev F) prepared by Studio Johnston	26 October 2023
2.	Amended Landscape Plans prepared by Dangar Barin Smith	30 October 2023
3.	Amended Stormwater Plans prepared by ADCAR Consulting	3 November 2023
4.	Geotechnical Investigation Report prepared by EI Australia	3 November 2023
5.	Amended Arboricultural Report prepared by Jackson Nature Works	3 November 2023
6.	BASIX Certificate No.1268405S_03 prepared by Efficient Living	9 November 2023

2. The amended development application was filed with the Court on 10 November 2023.

21. The Court orders:

1. The appeal is upheld.

2. Development Application DA/123/2022 for demolition of the existing dwelling, construction of a multi-storey dwelling including swimming pool, and associated landscaping and structures at 11 Mundarrah Street, Clovelly, is determined by a grant of consent subject to conditions contained in Annexure A.

E Washington

Acting Commissioner of the Court

Annexure A

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Decision last updated: 28 November 2023