Normark Developments Pty Ltd v Randwick City Council

[2018] NSWLEC 1667

Land and Environment Court

New South Wales

Medium Neutral Citation:	Normark Developments Pty Ltd v Randwick City Council [2018] NSWLEC 1667
Hearing dates:	Conciliation conference on 7 December 2018
Date of orders:	18 December 2018
Decision date:	18 December 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [11] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Category:	Principal judgment
Parties:	Normark Developments Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: N Sandstrom, Mills Oakley (Applicant) V McGrath, Norton Rose Fulbright (Respondent)
File Number(s):	2018/172294
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal by Randwick City Council of Development Application (DA) 762/2017, which seeks Torrens Title subdivision into two (2) lots, each with a semi-detached dwelling on Lot 2 DP 1197025, also known as 4A and 4B Storey Street, Maroubra. Dwellings known as 4A and 4B, are proposed to be located on Lots 50 and 51, respectively.

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the EPA Act 1979.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 7 December 2018. I have presided over the conciliation conference. There were no objections raised by third parties at this conciliation.

4. Following 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 is to uphold the appeal and grant consent to DA 762/2017 with conditions.

5. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to the DA with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP 2008), specifically cl 6.4; and Randwick Local Environmental Plan 2012 (RLEP 2012), specifically cl 4.1 and Amendment No 5 as it relates to cl 4.1D, which commenced on 17 August 2018.

7. The site is located within an R2 low density residential zone, pursuant to RLEP 2012. The existing dual occupancy dwellings satisfy the requirements of cl 4.1D(1), as they were approved in November 2015.

8. The parties explained that despite the proposed lot sizes not complying with minimum lot size standard in cl 4.1 of the RLEP 2012, a variation of the standard is not required as the DA satisfies the lot requirements as specified in cl 6.4 of the SEPP 2008. The proposed lots have sufficient size and dimension in a permissible zone (R2), with one dwelling limited to each lot. The dwellings are existing, constructed under an approved development and result in no adverse amenity impact. Access to the lots is conditioned to provide an easement that creates a right of carriageway and to allow the encroaching structure to remain, pursuant to s 88B of the Conveyancing Act 1919.

9. I am therefore 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 1979.

10. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

11. The Court orders:

1. The Appeal is upheld.

2. The development consent is granted to DA 762/2017 for Torrens title subdivision into two allotments of the property known as 4A and 4B Storey Street, Maroubra subject to the conditions set out in Annexure “A”.

3. The Applicant pay the Respondent’s costs in the amount of $750 as per the Registrar’s order of 5 July 2018, within 28 days of the date of this agreement.

……………………….

S Bish

Commissioner of the Court

Annexure A

Subdivision Plan