Land and Environment Court New South Wales Medium Neutral Citation: Attena Group Pty Ltd v Randwick City Council [2020] NSWLEC 1501 Hearing dates: Conciliation conference on 16 October 2020 Date of orders: 20 October 2020 Decision date: 20 October 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: (1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure A. (2) The appeal in respect of the property known as 285 Malabar Road, Maroubra NSW 2035 is upheld. (3) Development Application DA/292/2019 for the demolition of existing structures and construction of a dual occupancy development with pool, landscaping and associated works at 285 Malabar Road, Maroubra NSW 2035 is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – Attached dual occupancy development – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 Category: Principal judgment Parties: Attena Group Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2019/290264 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Attena Group Pty Ltd (Applicant) against the Respondent's deemed refusal of their development application DA/292/2019. The development application seeks consent for a dual occupancy development with pool and landscaping works at 285 Malabar Road, Maroubra. 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 16 October 2020. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the appeal is upheld, subject to the conditions of consent annexed to this judgment. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. Pursuant to the Randwick Local Environmental Plan 2012 (LEP 2012), the subject site is zoned R2 Low Density Residential. The use of the site for dual occupancy development is permissible with consent. I have had regard to the objectives of the zone in determining the application: 2.3(2) LEP 2012. 2. The development complies with the development standards for minimum lot size, height and floor space ratio in LEP 2012. 3. Clause 6.1 'Acid Sulfate soils' applies to the site. I am satisfied that the proposed development meets the requirements of cl 6.1(3) of LEP 2012. 4. Clause 6.2 'Earthworks' applies to the site. I am satisfied that the proposed development meets the requirements of cl 6.2(3) of LEP 2012. 5. Clause 6.4 'Stormwater Management' applies to the site. I am satisfied that the proposed development meets the requirements of cl 6.4(3) of LEP 2012. 6. Clause 6.7 of LEP 2012, Foreshore Scenic Protection Area, applies to the site. I am satisfied that the proposed development meets the requirements of cl 6.7(3) of LEP 2012. 7. Clause 6.10 'Essential Services" applies to the site. I am satisfied that services essential for the development are available or that adequate arrangements have been made to make them available when required. 8. An updated BASIX dated 4 September 2020 has been provided to satisfy the requirement of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 9. State Environmental Planning Policy (Coastal Management) 2018 (SEPP CM) applies to the site which is within the Coastal use area. As required by cl 14 of SEPP CM, in determining the application I have taken into consideration the matters at cl 14(1)(a) and cl 14(1)(c) of SEPP CM. Further, I am satisfied that the development is designed, sited and will be managed to avoid any adverse impact listed at cl 14(1)(a) of SEPP CM. Finally, I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land: cl 15 SEPP CM. 10. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy 55—Remediation of Land, I accept that the likelihood of contamination is low. 11. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure A. 2. The appeal in respect of the property known as 285 Malabar Road, Maroubra NSW 2035 is upheld. 3. Development Application DA/292/2019 for the demolition of existing structures and construction of a dual occupancy development with pool, landscaping and associated works at 285 Malabar Road, Maroubra NSW 2035 is approved subject to the conditions at Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (371691, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2020