Oulianoff v Randwick City Council

[2023] NSWLEC 1591

Land and Environment Court

New South Wales

Medium Neutral Citation:

Oulianoff v Randwick City Council [2023] NSWLEC 1591

Hearing dates:

Conciliation conference on 6 October 2023

Date of orders:

11 October 2023

Decision date:

11 October 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application No DA/461/2022 for alterations and additions to the existing dwelling including new fences on two street frontages on Lot A in Deposited Plan 938524, known as 9 Fraser Street Randwick, and removal of a street tree, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 29

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 6.4, 6.10

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

James Oulianoff (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
B Dyer (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Maddocks Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/210165

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) in regard to the applicant’s dissatisfaction with Randwick City Council’s determination to grant conditional development consent, on 5 January 2023, to DA/461/2022 (the DA). The DA relates to land legally described as Lot A DP938524 (the site). The site is a block which occupies land between Fraser Street and McLennan Avenue in Randwick, and has a frontage to each. The street address is nominated as 9 Fraser Street Randwick.

Development application and applicant’s dissatisfaction with certain conditions

2. The DA sought consent for:

1. Reconstruction of an existing masonry front fence (at the Fraser Street frontage).

2. Removal of a street tree to facilitate the widening of existing single car driveway (at the McLennan Avenue frontage).

3. Reconstruction of an existing timber fence in masonry (at the McLennan Avenue frontage).

3. The applicant’s appeal related to its dissatisfied with a number of the conditions imposed with the grant of consent, in particular in relation to proposed tree removal and certain driveway works.

Agreement reached

4. Recently, the parties indicated to the Court that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. In response to this, the matter was listed for a conciliation conference under s 34(1) of the Land and Environment Court Act 1979. I was appointed to preside.

5. At the conciliation conference, the parties outlined the particulars of their agreed decision. The parties agreed that all contentions, in particular in relation to proposed tree removal and certain driveway works, have been resolved with the preparation of amended plans and the refinement of consent conditions. This agreed decision of the parties involved the Court upholding the appeal and granting development consent to the DA under s 4.16 of the EPA Act, subject to those now agreed conditions. The essence of the agreed changes are summarised as follows:

• A certain street tree would be removed but two replacement trees would be provided for.

• Relevantly, the proposed driveway changes at McLennan Avenue would not form part of the consent.

• Certain restrictions on the proposed fencing to Fraser Street.

• Certain restrictions on the proposed fencing to McLennan Avenue.

• Certain requirements concerned with tree retention on the Fraser Street verge.

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.

Jurisdiction

7. There are certain jurisdictional pre-requisites which require attention before the function of granting consent to the DA can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in a note to the Court received by email on 5 October 2023. The note explained how jurisdictional matters have been or could be satisfied. Mindful of the parties’ jurisdictional note, I find as follows with regard to jurisdiction.

Randwick Local Environmental Plan 2012

8. Dwelling houses, and this form of ancillary development, are permissible within the applicable R3 Medium Density Residential zone under Randwick Local Environmental Plan 2012 (RLEP). Mindful of cl 2.3(2), I have had regard to the zone objectives. I also note that demolition (relevant to the proposed removal of a tree) is permissible with consent under the provisions of cl 2.7.

9. I accept the advice of the parties that this minor proposal does not breach any development standard and that there are very few applicable provisions under RLEP. Clause 6.4, relating to stormwater management, is applicable and I am satisfied that, as may be relevant, the requirements of cl 6.4(3) are satisfied. Here I do note the parties’ drawing to my attention proposed Condition 17. Clause 6.10, relating to essential services availability, is also applicable and I readily accept the advice of the parties that adequate services are available given the site’s setting in an established suburban area.

Environmental Planning and Assessment Regulation 2021

10. In their jurisdictional note the parties took me to relevant provisions of the Environmental Planning and Assessment Regulation 2021, and nothing arises which requires any attention on my part in relation to jurisdiction.

Remaining considerations under section 4.15(1) of the Environmental Planning and Assessment Act 1979

11. Randwick Development Control Plan 2013 applies, but jurisdictionally, nothing turns on this policy instrument.

12. The parties advise the proposal was notified in accordance with requirements and no submissions were received.

13. I have given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of s 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

14. I accept the advice of the parties that the amended conditions of consent are lawful, having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles.

15. With all of the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. 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. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

17. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA/461/2022 for alterations and additions to the existing dwelling including new fences on two street frontages on Lot A in Deposited Plan 938524, known as 9 Fraser Street Randwick, and removal of a street tree, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

P Walsh

Commissioner of the Court

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Annexure A

Decision last updated: 11 October 2023