Schaw v Randwick City Council

[2021] NSWLEC 1287

Land and Environment Court

New South Wales

Medium Neutral Citation:

Schaw v Randwick City Council [2021] NSWLEC 1287

Hearing dates:

Conciliation conference on 1, 15, 21 April and 6 May 2021

Date of orders:

26 May 2021

Decision date:

26 May 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant be granted leave to rely on the plans described in condition 1 of Annexure ‘A’

(2) The Applicant’s written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of RLEP dated April 2021 is upheld.

(3) The appeal is upheld.

(4) Development Application no DA/621/2019 for the demolition of existing structures, construction of a 3 storey residential flat building consisting of 4 units and one storey basement car parking, landscaping and associated works is approved subject to the conditions contained at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – 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 77

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 2.3, 2.6, 2.7, 4.1C, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.4, 6.10

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

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

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

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

NSW Department of Planning and Environment, Apartment Design Guide 2015

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Raimond Schaw (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):

2020/349070

Publication restriction:

No

Judgment

1. COMMISSIONER: Raimond Schaw (the Applicant) has appealed the deemed refusal by Randwick City Council (the Respondent) of his development application (DA/621/2019) for the demolition of existing structures, construction of a 3 storey residential flat building consisting of 4 units and one storey basement car parking, landscaping and associated works (the Proposed Development) at 60 Dolphin Street, Coogee (the Subject Site).

2. The Subject Site is zoned R3 Medium Density Residential under the provisions of cl 2.3 of Randwick Local Environmental Plan 2012 (RLEP), and pursuant to the provisions of cl 2.6 of RLEP the Proposed Development is permissible within that land use zone. The development application is made with owners’ consent.

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 1, 15, 21 April and 6 May 2021, and I presided over the conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was undertaken at the commencement of the conciliation conference. Two objectors, Mr J Fitzgibbon And Ms C Haynes, both residents of an adjoining development, provided oral submissions at the commencement of the proceedings.

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 matters that must be satisfied in order for the Court to have power to grant consent to the Proposed Development, and that these requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed, and I accept, that as the Subject Site has only been used for residential purposes, the Court can be satisfied that the Subject Site is suitable for the Proposed Development which is for a residential use as there is no evidence of contamination on the Subject Site, and the provisions of cl 7(1) of SEPP55 are satisfied;

2. in relation to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP65), an amended Design Verification Statement, prepared by Antoniades Architects dated 26 April 2021 in respect of the Final Plans, verifying the proposal complies with the requirements of the Apartment Design Guide. The Parties agree, and I am satisfied, that the amended application is consistent with the provisions of SEPP 65;

3. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the Parties agree, and I am satisfied, that the updated BASIX Certificate no 1197219M dated 26 April 2021 issued in respect of the Final Plans satisfies all the relevant requirements in the SEPP BASIX;

4. in relation to the provisions of RLEP:

1. as required under cl 2.3(2), regard has been had to the objectives of the R3 Medium Density Residential zoning of the Subject Site;

2. demolition of existing structures as proposed by the Applicant is permissible with development consent and thus the provisions of cl 2.7 of the RLEP are satisfied;

3. the Subject Site is compliant with the requirements pertaining to minimum lot size pursuant to cl 4.1C of the RLEP;

4. the Applicant’s amended plans are compliant with the floor space ratio development standard applicable to the Subject Site under the provisions of cl 4.4 of the RLEP;

5. the Applicant’s amended plans are not compliant with the overall height of buildings (HoB) development standard contained at cl 4.3 of the RLEP that is applicable to the Subject Site. The Applicant has prepared a written request pursuant to the provisions of cl 4.6 of RLEP in respect of the amended plans to vary the HoB development standard and in relation to which:

1. the cl 4.6 written request identifies that the maximum exceedance of the HoB development standard within the Proposed Development is 507mm at the location of the lift overrun;

2. the roof form also includes a HoB non-compliance of 210mm above the applicable development standard;

3. the cl 4.6 written request includes the relevant considerations required under cl 4.6 of RLEP to justify the proposed HoB non-compliance in the Applicant’s amended plans. These include an assessment against the objectives of both the R3 zone and the applicable HoB development standard, as well as identifying that sufficient environmental planning grounds exist to justify the non-compliance;

4. the Applicant’s shadow diagrams confirm, and I am satisfied, that the proposed HoB non-compliance does not result in unacceptable adverse amenity impacts on adjoining properties. It also confirms that it achieves both the cl 4.3(1)(c) in RLEP as well as compliant solar access levels to neighbouring properties consistent with the applicable solar access controls under Randwick Comprehensive Development Control Plan 2013 (RDCP);

5. the cl 4.6 written request also confirms that the sufficient environmental planning grounds to justify the proposed HoB non-compliance include the provisions of additional amenity for the residents of the Proposed Development by providing a 3100mm separation between finished floor levels within the development;

6. the Parties submit, and I am satisfied, that the cl 4.6 written request successfully demonstrates that compliance with the HoB development standard at cl 4.3 of RLEP is unreasonable and unnecessary, that the proposed exceedance is in the public interest, and that the request should be upheld;

6. In relation to the provisions of cl 6.1 of RLEP concerning acid sulfate soils, the Parties agree, and I am satisfied, that:

1. the Proposed Development may disturb potential acid sulfate soils;

2. those matters identified in cl 6.1(3) have been considered as part of the assessment of the Applicant’s amended plan;

3. an acid sulfate soils management plan has been prepared in accordance with the Acid Sulfate Soils manual by the Applicant’s Geotechnical expert, Asset Geo, as required under the provisions of cl 6.1(3) of RLEP; and

4. conditions of consent are proposed for imposition with the grant of consent to address and manage acid sulfate spoils issues, consistent with the acid sulfate soils management plan should this arise in the conduct of the Proposed Development;

7. in relation to the provisions of cl 6.2 of RLEP concerning earthworks, the Parties agree, and I am satisfied, that those matters arising in cl 6.2(3) have been considered as part of the assessment of the Final Plans as follows:

1. proposed earthworks and excavation will not have a detrimental impact on the soil stability or the amenity of neighbouring land uses;

2. the Applicant’s amended application has minimised the amount of excavation on the eastern and southern boundaries of the Subject Site;

3. these matters are further addressed in the Geotechnical Report prepared by Asset Geo dated 8 August 2019 along with the Parties proposed conditions of consent;

8. in relation to the provisions of cl 6.3 of RLEP concerning flood planning, the Parties agree, and I am satisfied, that a flood assessment impact report prepared by Cardno (dated 13 November 2019) has confirmed that the Proposed Development fulfils the requirements of cll 6.3(3)(a) to 6.3(3)(e). I also note advice from the Parties that the Subject Site has been categorised by the Respondent as being low hazard land in its letter of 15 October 2019;

9. in relation to the provisions of cl 6.4 of RLEP concerning stormwater management, the Parties agree, and I am satisfied, that the Applicant’s Proposed Development, as amended, including the Stormwater Management Plans prepared by Northrop dated 26 September 2020, fulfils the requirements in cl 6.4(3), and the Proposed Development incorporates appropriate measures to manage stormwater runoff as required;

10. in relation to cl 6.10 of RLEP concerning essential services, the Parties agree, and I am satisfied, that the essential services that are essential for the development are available or adequate arrangements have been made to make them available when required for the Proposed Development;

5. the Proposed Development has been notified consistent with the provisions of RDCP and cl 77 of the Environmental Planning and Assessment Regulation 2000, and in the opinion of the Respondent the matters raised in the submissions have been considered in reaching an agreement with the Applicant in this matter;

6. the Proposed Development complies with all other relevant controls of RDCP or if it does not comply with any provision then, pursuant to the provisions of s 4.15(3A) of the EP&A Act, the Proposed Development provides reasonable alternative solutions that achieve the objects of those controls for dealing with the relevant aspect of the development and in doing so merits application of flexibility in the application of those provisions.

9. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act.

10. 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.

11. 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, and 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 make, 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 be granted leave to rely on the plans described in condition 1 of Annexure ‘A’

2. The Applicant’s written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of RLEP dated April 2021 is upheld.

3. The appeal is upheld.

4. Development Application no DA/621/2019 for the demolition of existing structures, construction of a 3 storey residential flat building consisting of 4 units and one storey basement car parking, landscaping and associated works is approved subject to the conditions contained at Annexure ‘A’.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (359487, pdf)

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Decision last updated: 26 May 2021