Rosen v Randwick City Council [2020] NSWLEC 1523

Land and Environment Court New South Wales

Medium Neutral Citation: Rosen v Randwick City Council [2020] NSWLEC 1523 Hearing dates: Conciliation conference on 28 October 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders – See [13] 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 (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020) Randwick Development Control Plan 2013 Category: Principal judgment Parties: Michael Rosen (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): 2020/105813 Publication restriction: No

Judgment 1. COMMISSIONER: Michael Rosen (the Applicant) has appealed the refusal by Randwick City Council (the Respondent) of his development application DA/907/2018, made with the owners' consent, seeking approval for the demolition of an existing structure and erection of a three storey boarding house, including on-site parking, and associated landscaping (the Proposed Development) at 10 See Street, Kingsford (the Subject Site). 2. The Subject Site is zoned R3 Medium Density Residential under the provisions of Randwick Local Environmental Plan 2012, and a boarding house development is permissible with consent within this zone. 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 28 October 2020, and I presided over that conciliation conference. 5. 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. 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 prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows: 1. pursuant to the provisions of s 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55): 1. the requirements of cl 7(1) of SEPP 55 have been considered and they are satisfied that the Subject Site is not contaminated; and 2. the Parties are satisfied that the Subject Site poses no risk of contamination and therefore, no further consideration is required under cl 7(1)(b) and (c) of SEPP 55 and the land is considered to be suitable for residential land use. 1. pursuant to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and in accordance with requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), an updated BASIX Certificate No. 1043141M_02 has been prepared in respect of the Applicant's amended plans, and a condition of consent has been included in the agreed conditions of consent requiring compliance with the commitments indicated in the BASIX certificate; 2. pursuant to the provisions of cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009, the design of the Proposed Development, as amended, has been considered and the Respondent advised that, in its assessment, it is compatible with the character of the local area; 3. the Applicant's development application was notified in accordance with the requirements of the EP&A Act, the EP&A Regulation and Randwick Development Control Plan 2013. 1. 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. 2. 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. 3. 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. 4. 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. 5. The Court orders that: 1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure 'A'. 2. The appeal is upheld. 3. Development application DA/907/2018 seeking the demolition of existing dwelling and erection of a 3-storey boarding housing, parking and associated landscaping at 10 See Street, Kingsford, is approved subject to the conditions in Annexure 'A'.