Schulz v Randwick City Council

[2025] NSWLEC 1198

Land and Environment Court

New South Wales

Medium Neutral Citation:

Schulz v Randwick City Council [2025] NSWLEC 1198

Hearing dates:

Conciliation conference held on 18-19 March 2025

Date of orders:

02 April 2025

Decision date:

02 April 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA/75/2023, as amended, for alterations and additions to the existing dwelling (location heritage item) including rear extension and tree removal / pruning at 22 Young Street, Randwick NSW 2031 is determined by the grant of development consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7,

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 5.10, 6.10

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

Category:

Principal judgment

Parties:

Errol Schulz (First Applicant)
Viktoria Scheffer-Schulz (Second Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
N Hammond (Solicitor) (Respondent)

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

File Number(s):

2024/338391

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) against the refusal of development application DA/75/2023 (DA). The DA seeks development consent for alterations and additions to a dwelling house at 22 Young Street, Randwick, legally described as Lot 2 of DP 545098 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the Applicant amending development application DA/75/2023 in accordance with the documents listed below:

TAB	DOCUMENT	DATE
1	Schedule of Amendments to Architectural Plans (Rev G), prepared by Bentley Design	18 March 2025
2	Amended Architectural Plans (Rev G), prepared by Bentley Design: • DA-00 Cover Page • DA-01 Perspective Views • DA-02 Perspective Views 2 • DA-03 Site Plan • DA-04 Roof Plan Demolition • DA-05 Ground Floor Demolition Plan • DA-06 East Elevation Demolition • DA-07 West Elevation Demolition • DA-08 South Elevation Demolition • DA-09 North Elevation Demolition • DA-10 Ground Floor Plan • DA-11 Upper-Level Plan • DA-12 Roof Plan • DA-13 Section A • DA-14 Section B • DA-15 East Elevation • DA-16 North Elevation • DA-17 South Elevation • DA-18 West Elevation • DA-19 GFA Calculation • DA-20 Landscape • DA-21 Site Coverage Calculation Plan • DA-22 Sediment Waste Management • DA-23 Stormwater Concept Plan • DA-24A Shadow Diagram Winter-Proposed 8am • DA-24B Shadow Diagram Winter-Proposed 9am • DA-24C Shadow Diagram Winter-Proposed 10am • DA-24D Shadow Diagram Winter-Proposed 11am • DA-24E Shadow Diagram Winter-Proposed 12pm • DA-24F Shadow Diagram Winter-Proposed 1pm	18 March 2025
• DA-24G Shadow Diagram Winter-Proposed 2pm • DA-24H Shadow Diagram Winter-Proposed 3pm • DA-24I Shadow Diagram Winter-Proposed 4pm • DA-25A Axonometric Shadows – 8am • DA-25B Axonometric Shadows – 9am • DA-25C Axonometric Shadows – 10am • DA-25D Axonometric Shadows – 11am • DA-25E Axonometric Shadows – 12pm • DA-25F Axonometric Shadows – 1pm • DA-25G Axonometric Shadows – 2pm • DA-25H Axonometric Shadows – 3pm • DA-25I Axonometric Shadows – 4pm • DA-26 Window Schedule • DA-27 Door Schedule • DA-28 Finishes Schedule • DA-29 BASIX 01 • DA-30 BASIX 02
3	Updated BASIX Certificate No. A449743_03	20 March 2025

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18-19 March 2025. I presided over the conciliation conference.

4. 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 for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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.

Jurisdictional Prerequisites

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am 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, as set out below.

7. Owner’s consent accompanied the DA. The DA was lodged to the Respondent on 7 March 2023. The Respondent notified the DA between 16 March and 30 March 2023 where one submission was received. The objector was registered to speak at the commencement of the proceedings but ultimately did not to attend.

8. As the parties have reached an agreement, the Court does not consider the merits of the appeal. The parties have advised the Court that they have considered the relevant concerns and that they have been addressed by the amended plans.

Randwick Local Environmental Plan 2012

9. The site is zoned R2 Low Density Residential under the Randwick Local Environmental Plan 2012 (RLEP). The proposed development for works related to a dwelling house (alterations and additions) is permitted with consent in the zone and I have had regard to the objectives of the zone pursuant to cl 2.3.

10. The parties agree and I accept that the following applicable RLEP preconditions are met:

1. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

2. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 9.5m. The architectural plans prepared by Bentley Design dated 18 March 2025 (architectural plans) demonstrate that the development is below the maximum building height, at 7.7m.

3. Clause 4.4 Floor Space Ratio (FSR) applies to the site and prescribes a maximum of 0.75:1. The architectural plans demonstrate that the development is below the maximum FSR.

4. Clause 5.10 heritage conservation applies as the site is a local heritage item (I457) and is located within the local Struggletown Heritage Conservation Area. I accept on the basis of the joint expert report of the heritage experts and the jurisdictional statement that cl 5.10 has been considered.

5. Clause 6.10 essential services applies to the amended DA. The site is currently connected to all the requisite essential services and will continue to be as a result of the DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

11. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 apply to the site. The DA is accompanied by a SEE which states that the site has a history of residential use for many years and that there is no reason to suspect any contamination on site. Accordingly, the parties agree, and I accept that the provisions of s 4.6 have been satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2022

12. The parties agree and I accept that the amended DA is accompanied by an amended BASIX Certificate (A449743_03) that meets the provisions of the State Environmental Planning Policy (Sustainable Buildings) 2022.

Conclusion

13. 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.

14. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

15. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

16. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA/75/2023, as amended, for alterations and additions to the existing dwelling (location heritage item) including rear extension and tree removal / pruning at 22 Young Street, Randwick NSW 2031 is determined by the grant of development consent subject to the conditions of consent at Annexure A.

S Porter

Commissioner of the Court 

Annexure A

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Decision last updated: 02 April 2025