Piper Property Group Pty Ltd v Randwick City Council

[2020] NSWLEC 1580

Land and Environment Court

New South Wales

Medium Neutral Citation:

Piper Property Group Pty Ltd v Randwick City Council [2020] NSWLEC 1580

Hearing dates:

Conciliation conference on 3 November 2020

Date of orders:

25 November 2020

Decision date:

25 November 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely on the drawings referred to in condition 1 of Annexure “A” to this agreement.

(2) The appeal is upheld.

(3) Development application DA/470/2019 for alterations and additions to the existing dwelling, including an attic space, in-ground swimming pool and associated landscape works is granted subject to the conditions set out in Annexure “A” to this agreement.

(4) The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days following the entry of these orders.

Catchwords:

DEVELOPMENT 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:

Piper Property Group (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
N Eastman (Respondent)

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

File Number(s):

2020/67844

Publication restriction:

No

Judgment

1. COMMISSIONER: Piper Property Group Pty Ltd (the Applicant) has appealed the refusal by Randwick City Council (the Respondent) of its development application DA/470/2019, made with the owners’ consent, seeking approval for the alterations and additions to an existing dwelling, including attic space, in-ground pool and associated landscape works (the Proposed Development) at 24 Alexandria Parade, South Coogee (the Subject Site).

2. The Subject Site is zoned R2 Low Density Residential under the provisions of Randwick Local Environmental Plan 2012 (RLEP), and the Proposed Development is permissible with consent within this zone.

3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

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 3 November 2020, and I presided over that conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). While a site view was undertaken during the conference consistent with the Policy, no objector evidence was taken on site during the view. However, objector evidence was received by telephone at the commencement of the conciliation conference from the five objectors, all of whom were, or were representing, nearby residents of the Subject Site.

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. pursuant to the provisions of cl 7 of the State Environmental Planning Policy No 55—Remediation of Land (SEPP 55):

1. the requirements of cl 7(1) of SEPP 55 have been considered and the Parties submit, and I am satisfied, that the Subject Site is not contaminated; and

2. the Parties also submit, and I am satisfied, that the Subject Site poses no risk of contamination and therefore, no further consideration is required under cl 7(1)(b) and (c) of SEPP 55 and the land is considered to be suitable for residential land use.

2. pursuant to the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and in accordance with requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), an updated BASIX Certificate No. A354069_04 has been prepared in respect of the Applicant’s amended plans, and a condition of consent has been included in the agreed conditions of consent requiring compliance with the commitments indicated in the BASIX certificate;

3. the Proposed Development is the subject of the provisions of RLEP, and the following are the jurisdictional considerations of relevance within that instrument:

1. clause 6.4(3) of RLEP which concerns stormwater management, and in relation to which the Parties have confirmed, and I am satisfied, that, on the basis of the Applicant’s Statement of Environmental Effects, 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; and

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.

2. clause 6.7(3) of RLEP, which concerns foreshore scenic protection areas, and in relation to which the Parties have confirmed, and I am satisfied, that, on the basis of the Applicant’s Statement of Environmental Effects, the Proposed Development

1. 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

2. contributes to the scenic quality of the coastal foreshore;

3. clause 6.10 which concerns essential services, and in relation to which the Parties have confirmed, and I am satisfied, that, on the basis of the Applicant’s Statement of Environmental Effects, the following services that are essential for the Proposed Development are available:

1. the supply of water;

2. the supply of electricity;

3. the disposal and management of sewage;

4. stormwater drainage or on-site conservation;

5. suitable vehicle access.

4. the Proposed Development is subject to the provisions of State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) as the Subject Site falls within the ‘Coastal Environment Area’ and the ‘Coastal Use Area’ under the Coastal Management SEPP. The following are the jurisdictional considerations of relevance within the Coastal Management SEPP:

1. clause 13(2) which concerns development on land within the coastal environment area. The Parties have confirmed, and I am satisfied, that, on the basis of the Applicant’s Statement of Environmental Effects, the Proposed Development is designed, sited and will be managed to avoid an adverse impact on the following:

1. the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment;

2. coastal environmental values and natural coastal processes;

3. the water quality of the marine estate;

4. marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms;

5. existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability;

6. Aboriginal cultural heritage, practices and places; and

7. the use of the surf zone.

2. clause 14(1) which concerns development on land within the coastal use area. The Parties have confirmed, and I am satisfied, that, on the basis of the Applicant’s Statement of Environmental Effects, the Proposed Development on the Subject Site is designed, sited and will be managed to avoid an adverse impact on the following:

1. existing safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability;

2. wind funnelling and the loss of views from public places to foreshores;

3. the visual amenity and scenic qualities of the coast, including coastal headlands;

4. Aboriginal cultural heritage, practices and places; and

5. cultural and built environment heritage.

3. also as required under cl 14(1) of the Coastal Management SEPP, the development is designed, sited and will be managed to minimise overshadowing.

4. clause 15 which concerns development in coastal zone generally, and which requires that development is not to increase risk of coastal hazards. The Parties have confirmed, and I am satisfied, that, on the basis of the Applicant’s Statement of Environmental Effects, the Proposed Development is not likely to cause an increased risk of coastal hazards on the Subject Site, or on other land.

5. the Applicant’s development application was notified in accordance with the requirements of the EP&A Act, the EP&A Regulation and Randwick Development Control Plan 2013.

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, 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 amend the development application and rely on the drawings referred to in condition 1 of Annexure “A” to this agreement.

2. The appeal is upheld.

3. Development application DA/470/2019 for alterations and additions to the existing dwelling, including an attic space, in-ground swimming pool and associated landscape works is granted subject to the conditions set out in Annexure “A” to this agreement.

4. The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days following the entry of these orders.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (337330, pdf)

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Decision last updated: 25 November 2020