Provelop Group Pty Ltd v Randwick City Council

[2021] NSWLEC 1278

Land and Environment Court

New South Wales

Medium Neutral Citation:

Provelop Group Pty Ltd v Randwick City Council [2021] NSWLEC 1278

Hearing dates:

Conciliation conference on 17 May 2021

Date of orders:

27 May 2021

Decision date:

27 May 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Consent is granted to Development Application for demolition of existing structures and construction of a 3-storey attached dual occupancy, basement car parking, roof top terrace, landscaping and associated works at 159 Duncan Street, Maroubra subject to conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – amended plans – town planning experts agree amended plans warrant approval – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 4.16

Environmental Planning and Assessment Regulation 2000, cl 49

Land and Environment Court Act 1979, s 34AA

Local Land Services Act 2013, s 60O

Randwick Local Environmental Plan 2012

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 8(1)

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Provelop Group Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Berveling (Respondent)

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

File Number(s):

2020/302624

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Provelop Group Pty Ltd (the Applicant) against the Respondent’s deemed refusal of development application DA/393/2020. The development application seeks approval for demolition of existing structures and construction of a three-storey attached dual occupancy development. The development is proposed at 159 Duncan Street, Maroubra (Lot A in DP 396073).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the application pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34AA(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 17 May 2021. On 13 May 2021, prior to the conciliation, the Applicant was granted leave to amend their development application. At the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the appeal is upheld, and the development application as amended be approved, subject to the conditions of consent annexed to this judgment. With the agreement of the parties, the architectural plans of the amended development application are also annexed.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) consent for the development application has been provided by the owners of the land.

2. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I accept that the likelihood of contamination is low and that it is reasonable to conclude that the site has not been utilised for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines.

3. An updated BASIX Certificate (1123931M-02) has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) applies to the removal of any trees from the Site. Clause 8(1) of the Vegetation SEPP provides:

(1) An authority to clear vegetation is not required under this Policy if it is clearing of a kind that is authorised under section 60O of the Local Land Services Act 2013 (Clearing authorised under other legislation) or under Part 5B (Private native forestry) of that Act. This subclause does not apply to clearing merely because it is a part of or ancillary to the carrying out of exempt development.

5. Section 60O of the Local Land Services Act 2013 provides relevantly:

60O Clearing authorised under other legislation

For the purposes of this Part, the clearing of native vegetation in a regulated rural area is authorised under other legislation in any of the following cases—

(a) The clearing was authorised by—

i. a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or

6. On that basis, the effect of the Vegetation SEPP is overcome in the present case due to the need for development consent under Part 4 of the EPA Act.

7. The site is zoned R3 Medium Density Development pursuant to Randwick Local Environmental Plan 2012 (LEP 2012). Development for the purpose of attached dual occupancy is a permissible use with consent in the zone. In determining the development application, I have had regard to the objectives of the zone.

8. The town planning experts agree, and I accept, that the amended development application is compliant with the development standards for height and floor space ratio in LEP 2012. Further, the annexed conditions incorporate conditions to limit additional furniture and the like on the roof top terrace.

9. The subject site is mapped as Class 5 on the Acid Sulfate Soils Map. I am satisfied that whilst the works are within 500m of another mapped class, the works will not lower the water table below 1m AHD: cl 6.1 of LEP 2012.

10. As required by cl 6.2 ‘Earthworks’ of LEP 2012, I have given consideration to the matters in cl 6.2(3) of LEP 2012 in determining to grant consent to the development.

11. The application was notified in accordance with the relevant development control plan. The Court was also addressed by a number of residents during the onsite component of the proceedings. I have considered these submissions in determining the development application. I note that the joint town planning expert report includes the following statement: ‘Both experts agree that the proposed development also has no unreasonable amenity impacts to surrounding properties in relation to overshadowing, visual privacy, noise and view loss’.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Consent is granted to Development Application for demolition of existing structures and construction of a 3-storey attached dual occupancy, basement car parking, roof top terrace, landscaping and associated works at 159 Duncan Street, Maroubra subject to conditions set out in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (324790, pdf)

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Decision last updated: 27 May 2021