Savic v Randwick City Council

[2021] NSWLEC 1777

Land and Environment Court

New South Wales

Medium Neutral Citation:

Savic v Randwick City Council [2021] NSWLEC 1777

Hearing dates:

Conciliation conference held on 13-14 December 2021

Date of orders:

20 December 2021

Decision date:

20 December 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA/125/2021 for the demolition of the existing dwelling and structures, and construction of a new three storey dwelling house with basement parking, landscaping works, and an in-ground pool at 26 Liguria Street, South Coogee is approved, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – dwelling – 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 2000, cl 55

Land and Environment Court Act 1979, s 34AA

Randwick Local Environmental Plan 2012

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

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

Sydney Regional Environmental Policy (Coastal Management) 2018, cl 14

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Vojkan Savic (First Applicant)
Danijela Savic (Second Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Seymour (Applicants)
S Flanigan (Respondent)

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

File Number(s):

2021/242812

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 125/2021 by the Randwick City Council (the Council), which as amended, seeks the construction of a dwelling with basement parking and inground pools, tree removal and landscaping on Lot A DP 88761, also known as 26 Liguria Street, South Coogee (the site).

Background

2. The DA was submitted to Council on 15 March 2021 and was internally assessed, although is not yet determined.

3. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (Court Act), with an onsite view, by agreement of the parties. The conciliation was then held by MS Teams.

5. The Council agreed for the applicant to amend the plans and documents that support and amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council and issues raised by residents, have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 125/2021, with conditions.

7. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 125/2021, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been assessed by the Court:

1. Randwick Local Environmental Plan 2012 (RLEP):

1. The planning evidence is that the amended proposal is consistent with the aims and objectives of RLEP, and the objectives of the R2 Low Density Residential zone, within which the development is located. The proposed dwelling is permissible with consent in this zone, and has been sized, sited and designed to comply with the relevant development standards.

2. Sydney Regional Environmental Policy (Coastal Management) 2018 (SREP Coast):

1. The site is subject to the provisions of the SREP Coast, pursuant to cl 14. The parties agree that the proposed development is consistent with the SREP Coast based on its amended design, siting, and minimisation of visual amenity and scenic quality impacts.

3. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55):

1. The site is not listed on Council’s land contamination register and the amended proposal is otherwise consistent with SEPP 55, specifically cl 7(1). The site has historically been used for residential purposes.

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

1. A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended DA.

5. Randwick Development Control Plan 2013 (RDCP):

1. The relevant requirements of the RDCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the RDCP, and four submissions were received. The Court has been provided the written submissions and also heard oral submission during the conciliation from three objectors. The Council explained that they have considered these submissions in their merit assessment, in particular with regards to view retention, amenity and streetscape.

Grant of consent

9. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

10. The Council has undertaken the appropriate merit assessment of the proposed development.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 125/2021 should be granted, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

12. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

13. The Court notes that:

1. That Randwick City Council, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), to the Applicant amending development application DA/125/2021.

2. That the amended application as described in Annexure ‘B’ was lodged on the NSW Planning Portal on 14 December 2021.

3. That the Applicant subsequently filed the amended application with the Court on 14 December 2021.

4. The Respondent agrees to upload the development consent on the NSW Planning Portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders.

5. The Respondent will publish a notice of the development consent granted in relation to Development Application No. DA/125/2021 on its website in accordance with clause 124 of the EPA Reg within 14 days of the date of these orders.

14. The Court orders that:

1. The appeal is upheld.

2. Development application DA/125/2021 for the demolition of the existing dwelling and structures, and construction of a new three storey dwelling house with basement parking, landscaping works, and an in-ground pool at 26 Liguria Street, South Coogee is approved, subject to the conditions of consent in Annexure ‘A’.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (313524, pdf)

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Decision last updated: 20 December 2021