Plumb v Randwick City Council

[2021] NSWLEC 1067

Land and Environment Court

New South Wales

Medium Neutral Citation:

Plumb v Randwick City Council [2021] NSWLEC 1067

Hearing dates:

Conciliation conference 8 February 2021

Date of orders:

16 February 2021

Decision date:

16 February 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

See orders at [9] below

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 No 55 – Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Stuart Plumb (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

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

File Number(s):

2020/225797

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) against Randwick City Council's deemed refusal of development application 154/2020 (the DA).

2. The DA proposes the demolition of the existing structures and construction of a 4-storey residential flat building, car lift, parking basement and associated structures; on Lot 26 DP 7611, also known as 20 Glen Avenue Randwick (the Site).

3. After an earlier attempt at conciliation between the parties before me had terminated, the parties approached the Court again in regard to conciliation. The Court arranged a further conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 8 February 2021. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in a note to the Court received by email on 21 January 2021. The note explained how jurisdictional matters have been or could be satisfied. In regard to jurisdiction, I note the following:

• Residential flat buildings are permissible within the applicable Zone R3 Medium Density Residential zone of Randwick Local Environmental Plan 2012 (the LEP).

• Mindful of cl 2.3(2) of the LEP, I have had regard to the zone objectives which are:

1   Objectives of zone

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

•  To protect the amenity of residents.

•  To encourage housing affordability.

•  To enable small-scale business uses in existing commercial buildings.

• I also note that demolition is permissible with consent under the provisions of cl 2.7 of the LEP.

• The development does not contravene any development standard in the LEP.

• Other LEP provisions are appropriately addressed on the advice of the parties.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. On the advice of the parties, I am satisfied that due practical consideration has been given in regard to the relevant requirements.

• An updated BASIX certificate has been issued to the Council in respect of the Final Plans.

• Having regard to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), I note the Applicant’s architect has prepared an updated design verification statement. On the advice of the parties, I believe adequate regard has been had to the design quality principles and the Apartment Design Guide objectives.

• I have been advised that the application was notified in accordance with Council Notification Policy and that issues raised in submissions have been satisfied with the amending plans. I am satisfied that consideration has been given to public submissions.

7. With this advice of the parties, I am satisfied that 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.

8. I note that I have had no direct regard to the merits of the application in coming to this position.

9. The Court orders:

1. The appeal is upheld.

2. Development Application no. DA/154/2020 for a residential flat building and associated landscaping is approved subject to the conditions contained at Annexure ‘A’.

……………………………

P Walsh

Commissioner of the Court

Annexure A (459857, pdf)

Architectural Plans (41995321, pdf)

Landscape Plans (9872027, pdf)

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Decision last updated: 16 February 2021