Shi v Randwick City Council

[2020] NSWLEC 1639

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shi v Randwick City Council [2020] NSWLEC 1639

Hearing dates:

Conciliation conference on 7 December 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

See orders below at [15]

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Randwick Local Environmental Plan 2012

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

State Environmental Planning Policy No 55 – Remediation of Land

Texts Cited:

Australian Standard 2021—2000, Acoustics—Aircraft noise intrusion—Building siting and construction

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

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Jack Shi (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Randwick City Council (Respondent)

File Number(s):

2020/119122

Publication restriction:

No

Judgment

1. COMMISSIONER: Jack Shi (the Applicant) has appealed the refusal by Randwick City Council (the Respondent) of his development application DA/130/2019, made with the owners’ consent, seeking approval for demolition of existing structures and construction of a two-storey dwelling with basement car parking and associated works (the Proposed Development) at 23 Creer Street, Randwick (the Subject Site).

2. The Proposed Development (as amended) includes:

1. the removal of the roof terrace and the further changes to reduce the bulk and scale of the Proposed Development and alleviate the aural and visual privacy impacts;

2. a reduction in gross floor area of the Proposed Development; and

3. the removal of the Council’s mature street tree to allow for construction of a driveway crossing 600mm from the side boundary;

3. The Respondent advises that:

1. as a consequence of the amended plans, the planning contentions with respect to bulk, scale, building articulation, and the aural/visual privacy of the Proposed Development are resolved;

2. the loss of the street tree, which was a significant concern for the Respondent due to it being a mature, endemic species and one which enhanced the streetscape, was accepted by the Respondent to allow a driveway to provide vehicular access to the Subject Site, on the basis that, as part of the Proposed Development, a relatively advanced sized replacement street tree would be provided and located outside of the Subject Site and two additional advanced sized trees would be provided on the Subject Site.

4. The Subject Site is zoned R2 Low Density Residential and, the Proposed Development is permissible with consent within that zone.

5. 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.

6. 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 7 December 2020, and I presided over that conciliation conference.

7. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy and no site view was undertaken during the conference.

8. 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 approving the Applicant’s modification application, subject to conditions.

9. 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.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties have advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. the Proposed Development complies with the height of buildings development standard applicable to the Subject Site under cl 4.3 of Randwick Local Environment Plan 2012 (RLEP);

2. the Proposed Development complies with the floor space ratio development standard applicable to the Subject Site under cl 4.4 of RLEP;

3. in relation to cl 6.9 of RLEP which concerns development in areas subject to aircraft noise:

1. the Subject Site is located within the ANEF contour of 20 or greater, and so this clause applies to the Subject Site;

2. having considered the matters required of a consent authority in cll 6.9(3)(a) and 6.9(3)(b) of RLEP, the Parties agree, and I accept, that:

1. the Proposed Development does not result in any additional dwellings, as it replaces one dwelling with a new dwelling;

2. the proposed dwelling within the Proposed Development is an acceptable form of development within the applicable ANEF zone;

3. as required under cl 6.9(3)(c), the Respondent’s is satisfied the Applicant’s Proposed Development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021—2000;

4. a general condition of consent (condition 3) is proposed for imposition with the grant of consent requiring certification to address the matters required by Table 3.3 in AS 2021-2000.

4. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) applies to the land. As the Subject Site has only been used for residential purposes and, having considered whether the land is contaminated, the Parties agree that it is unlikely to be contaminated. On this basis the provisions of cl 7 of SEPP 55 are satisfied;

5. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the Subject Site, and the Applicant has provided a BASIX certificate number 974623S_02, dated 27 November 2020, such that the Proposed Development complies with all of the relevant requirements of SEPP BASIX;

6. Randwick Development Control Plan 2013 (RDCP) applies to the Subject Site and the Parties agree that the Proposed Development either complies with the controls within the RDCP or otherwise is consistent with the objectives of the controls such that it provides  reasonable alternative solutions and, as a consequence, the provisions of RDCP should be applied flexibly as required under s 4.15(3A) of the EP&A Act;

7. The Applicant’s development application was notified from 15 March 2019 to 29 March 2019 as required under the provisions of the EP&A Act, the Environmental Planning and Assessment Regulation 2000, and RDCP.

11. Having considered the advice of the Parties, provided above at [10], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 8.14 of the EP&A Act have been so satisfied.

12. 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.

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. The Court orders that:

1. Leave is granted to the Applicant to rely on the following plans (as referred to in condition 1 of Annexure ‘A’):

Plan	Revision	Drawn by	Dated
Site and Roof Plan	E	Peak Architects	23 November 2020
Demolition Plan & Existing Site GFA	E	Peak Architects	23 November 2020
Basement & Ground FL Plan	E	Peak Architects	23 November 2020
First FL & Roof / Site Plan	E	Peak Architects	23 November 2020
Basement & Swept Paths	E	Peak Architects	23 November 2020
Ground FL Plan	E	Peak Architects	23 November 2020
First FL Plan	E	Peak Architects	23 November 2020
Streetscape Elevation	E	Peak Architects	23 November 2020
Elevations & Sections	E	Peak Architects	23 November 2020
North & South Elevations	E	Peak Architects	23 November 2020
East & West Elevations	E	Peak Architects	23 November 2020
Section A	E	Peak Architects	23 November 2020
Section B, C & D	E	Peak Architects	23 November 2020
Driveway Section	E	Peak Architects	23 November 2020
Landscape Plan dwg L-01	B	EcoDesign	27 November 2020

2. The appeal is upheld.

3. Development Application no. DA/130/2019 is approved for the demolition of existing structures, construction of a new two storey dwelling house, basement carparking and water tank, landscaping (including removal of Council’s street tree) and associated works, subject to the conditions contained in Annexure ‘A’.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (300229, pdf)

**********

Decision last updated: 14 December 2020