Raymar Developments (NSW) Pty Ltd v Randwick City Council

[2023] NSWLEC 1720

Land and Environment Court

New South Wales

Medium Neutral Citation:

Raymar Developments (NSW) Pty Ltd v Randwick City Council [2023] NSWLEC 1720

Hearing dates:

Conciliation conference held 23 October, 13 and 20 November 2023.

Date of orders:

29 November 2023

Decision date:

29 November 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/510/2022 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $6,750.

(3) Consent is granted to Development Application DA/510/2022 (as amended) for demolition of existing structures and construction of two, two-storey semi-detached dwellings with attic level, at 37 Waverley Street, Randwick, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – semi-detached dwellings – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.1, 2.3, 2.6, 4.1, 4.3, 4.4, 5.10, 6.1, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Raymar Developments (NSW) Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

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

File Number(s):

2023/164741

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Raymar Developments (NSW) Pty Ltd (the Applicant), against the deemed refusal of Development Application DA/510/2022 (the DA) by Randwick City Council (the Respondent). At the time of its deemed refusal, the DA sought consent for demolition of existing structures, construction of two, two-storey semi-detached dwellings with attic level and associated Torrens title subdivision at 37 Waverley Street, Randwick (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 October, 13 and 20 November 2023. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by the Applicant to resolve the contentions initially raised by the Respondent, which included issues of the exceedance of the relevant height of building development standard, detrimental streetscape and heritage impacts, inappropriate building envelope and setbacks, amenity impacts arising from solar access, cross viewing and acoustic privacy, car parking and building design more generally.

5. The final design amendments include enhancements to the landscape design across the site, adjustments to the scale and form of the DA, particularly at the attic level, which has been reduced in its size and further set back from the northern and southern neighbours, along with other refinements and measures to mitigate against cross viewing.

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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 7 to 21 November 2022 and three submissions were received by the Respondent.

10. The issues raised in written submissions include concerns for heritage, streetscape and contextual fit, tree loss, inadequate building setbacks and separation, cross viewing and privacy, and car parking and access.

11. The parties agree that the amended DA satisfactorily resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

12. The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is the relevant local environmental planning instrument. Pursuant to cl 2.1 of the RLEP - Land use zones - the site is zoned R3 Medium Density Residential and the proposed development - characterised as semi-detached dwellings - is permissible with consent.

13. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the RLEP, the proposed development is consistent with the R3 Medium Density Residential zone objectives, which include 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 recognise the desirable elements of the existing streetscape and built form, to protect the amenity of residents, and to encourage housing affordability.

14. The parties agree, and I am satisfied, that pursuant to cl 2.6 of the RLEP, subdivision is permissible with development consent.

15. The parties agree, and I am satisfied, that all principal development standards of the RLEP have been met by the amended DA.

16. Specifically, pursuant to cl 4.1 of the RLEP - Minimum subdivision lot size - the proposed subdivision is not identified as requiring a minimum lot size.

17. Pursuant to cl 4.3 of the RLEP - Height of buildings - the DA meets the 9.5m maximum height of building development standard, proposing a maximum height of 9.2m.

18. And further, pursuant to cl 4.4 of the RLEP - Floor space ratio (FSR) - the DA is not subject to a development standard for FSR by virtue of cl 4.4(2B), which provides that there is no maximum FSR for a semi-detached dwelling on a lot with an area of 300sqm or less.

19. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the RLEP - Heritage conservation - the site is not identified as a heritage item, nor is it situated within a Heritage Conservation Area (HCA). However, the site is bounded to its north and east by the Gordon Square HCA and is situated within approximately 50m of an identified heritage item (I386), being a collection of terrace houses at 2 to 26 Gordon Street (Gordon Terrace).

20. Consequently, the Applicant has provided a Heritage Impact Assessment, which concludes that the DA is consistent with the objectives of cl 5.10 of the RLEP.

21. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the RLEP - Acid sulfate soils - the site is not identified within the relevant Acid Sulfate Soils Map and, therefore an acid sulfate management plan is not required.

22. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the RLEP - Stormwater management - the amended DA has been assessed by the Respondent and I am satisfied it addresses the objectives of cl 6.4. Agreed conditions of consent reflecting the matters at cl 6.4(3) are imposed.

23. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

24. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity) is an additional relevant environmental planning instrument. Pursuant to Ch 2 of SEPP Biodiversity, the DA as amended now seeks consent for the removal of four existing trees. The Applicant has provided an Arboricultural Assessment Report, prepared by NSW Trees and dated 20 July 2023. I am satisfied the amended DA conforms with the relevant provisions of SEPP Biodiversity.

25. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). An amended BASIX certificate number 1332482M_03, dated 14 November 2023 has been provided with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.

26. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

27. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 20 November 2023.

Orders

28. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/510/2022 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $6,750.

3. Consent is granted to Development Application DA/510/2022 (as amended) for demolition of existing structures and construction of two, two-storey semi-detached dwellings with attic level, at 37 Waverley Street, Randwick, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

164741.23 Annexure A

164741.23 Annexure B

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Decision last updated: 29 November 2023