Notaras v Randwick City Council

[2021] NSWLEC 1035

Land and Environment Court

New South Wales

Medium Neutral Citation:

Notaras v Randwick City Council [2021] NSWLEC 1035

Hearing dates:

Conciliation conference on 16 and 17 December 2020

Date of orders:

21 January 2021

Decision date:

21 January 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the plans described in condition 1 of Annexure ‘A’.

(2) The appeal is upheld.

(3) Development Application no. DA/161/2019 is approved subject to the conditions contained at Annexure ‘A’.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Randwick Local Environmental Plan 2012

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

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020)

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Tania Notaras (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/265823

Publication restriction:

No

Judgment

1. COMMISSIONER: Tania Notaras (the Applicant) has appealed the refusal by Randwick City Council (the Respondent) of her Development Application No. DA/161/2019, made with owner’s consent, seeking consent for a new dwelling including a swimming pool, landscaping, and associated works (the Proposed Development) at 20 Marine Parade, Maroubra (the Subject Site).

2. The appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant now seeks leave to amend its development application to reduce the height and setbacks, and to make other amendments to the internal layout, of the Proposed Development.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 16 and 17 December 2020, and I presided over the conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy. No site view was undertaken during the conference, and no objectors had sought to make representations to the Court as part of the conciliation conference.

6. 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 consent to the Applicant’s development application, subject to conditions.

7. 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.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. in relation to the provisions of Randwick Local Environmental Plan 2012 (RLEP):

1. the Subject Site is zoned R2 low density residential under the RLEP and development for the purposes of dwelling house development is permissible in the Zone;

2. as required by cl 2.3(2) of RLEP, regard has been given to the R2 zone objectives. The Parties are satisfied, and I accept, that the development reasonably satisfies zone objectives;

3. demolition of the existing dwelling on the Subject Site is permissible with development consent under the provisions of cl 2.7 of the RLEP;

4. clause 4.3 of RLEP provides that a maximum building height development standard of 9.5m applies to the Subject Site and the Proposed Development complies with that development standard;

5. clause 4.4 provides for a maximum floor space ratio (FSR) development standard of 0.65:1 on the Subject Site and the Proposed Development complies with the Subject Site’s FSR development standard;

6. the Proposed Development includes earthworks for the construction of the proposed new dwelling house on the Subject Site, and pursuant to the provisions of cl 6.2 ‘Earthworks’ of RLEP, the Parties advise, and I accept, that consideration has been given to the matters identified in cl 6.2(3) of RLEP as part of the Respondent’s assessment of the Applicant’s amended plans and appropriate conditions of consent are proposed for imposition with the grant of consent to mitigate any potential impacts that may arise in respect of earthworks proposed as part of the Proposed Development;

7. in relation to the provisions of cl 6.4 ‘Stormwater management’ in RLEP, the Parties have advised, and I am satisfied, that the Proposed Development:

1. 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;

2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water;

3. 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

4. stormwater generated by the Proposed Development will be appropriately managed through the imposition of proposed conditions 14, 15 and 16;

8. in relation to the provisions of cl 6.7 ‘Foreshore Scenic Protection Area’ of RLEP the Parties advise, and I accept, that:

1. the amended plans satisfy those matters arising in cll 6.7(3)(a) and (b) of RLEP, and

2. the amended design of the Proposed Development minimises potential visual impacts in relation to public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas; and

3. the Proposed Development will contribute to the scenic quality of the coastal foreshore

9. in relation to the provisions of cl 6.10 ‘Essential services’ of RLEP, the Parties advise, and I accept, that adequate arrangements have been made for the supply of water and electricity to the Proposed Development, and for:

1. the disposal of sewage;

2. stormwater drainage; and

3. vehicle access.

2. consistent with the provisions of cl 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and the Environmental Planning and Assessment Regulation 2000, a BASIX Certificate (Certificate number: 996278S_02) has been submitted in relation to the development application, as amended. The Certificate identifies that the development complies with applicable water, thermal comfort and energy targets;

3. in relation to the provisions of cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have advised, and I accept, that:

1. the Subject Site has historically been used for residential purposes;

2. the Proposed Development does not involve a change of use on the Subject Site;

3. as a consequence of the above points (at (a) and (b)) it is unlikely that the Subject Site is contaminated; and

4. pursuant to the provisions of cl 7(1) of SEPP55, consent can be granted to the Proposed Development.

4. for the purposes of cl 14 of the State Environmental Planning Policy (Coastal Management) 2018 , the Parties advise, and I accept, that:

1. consideration has been given to those matters identified in cl 14(1)(a); and

2. the Proposed Development has been designed and sited to mitigate any of the potential adverse impacts identified in 14(1)(a), particularly in relation to public views and visual amenity.

5. the Parties advise, and I accept, that the Proposed Development, as amended, satisfies the controls within the relevant provisions of the Randwick Development Control Plan 2013 (RDCP) or where those controls are not met the Proposed Development represents a reasonable alternative that achieves the objectives of those controls such that flexibility should be applied in the application of those controls;

6. the Applicant’s development application was notified in accordance with the provisions of RDCP, and six submissions were received in response to that notification. The Parties advise, and I accept, that the matters raised in those submissions have been considered by the Parties, most notably in relation to potential view loss impacts to which the amended plans are responsive.

9. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

10. I am further 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.

11. 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.

12. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court orders that:

1. The Applicant is granted leave to rely on the plans described in condition 1 of Annexure ‘A’.

2. The appeal is upheld.

3. Development Application no. DA/161/2019 is approved subject to the conditions contained at Annexure ‘A’.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (321429, pdf)

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Decision last updated: 21 January 2021