Land and Environment Court New South Wales Medium Neutral Citation: Robinson v Randwick City Council [2020] NSWLEC 1606 Hearing dates: Conciliation conference on 26-27 November 2020 Date of orders: 4 December 2020 Decision date: 04 December 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (1) The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of Annexure 'A'. (2) The clause 4.6 request dated 25 November 2020 prepared by Lockrey Planning and Development Solutions in relation to the minimum subdivision lot size pursuant to clause 4.1 of Randwick Local Environmental Plan 2012 is well founded and upheld. (3) The appeal is upheld. (4) Development Application DA/381/2019 for: (a) Demolition of the existing dwelling and 3 garage structures at 18 and 20 Surfside Avenue, Clovelly; (b) Retention of two garage structures at 20 Surfside Avenue; (c) Boundary adjustment between 18 and 20 Surfside Avenue; and (d) Construction of a part 2 and part 3 storey dwelling house at 18 Surfside Avenue, Clovelly including swimming pool and new vehicular access; is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – demolition, re-subdivision – variation to minimum lot size – new dwelling house – amended plans – 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 55—Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Peter Robinson (First Applicant) Kathleen Robinson (Second Applicant) Randwick City Council (Respondent) Representation: Counsel: A Knox (Solicitor) (Applicants) V McGrath (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2020/182148 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Peter and Kathleen Robinson (the Applicant's) against the Respondent's refusal of their development application DA/381/2019. The development application seeks consent for demolition of existing dwellings at 18 & 20 Surfside Avenue, partial retention of garages at 20 Surfside Avenue, boundary adjustment between both properties, construction of new part 2 and part 3 storey dwelling at 18 Surfside Avenue, swimming pool to the rear, new vehicular access and associated works. 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 appeal was listed for mandatory conciliation on 26 November 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). At the conciliation conference, 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 was acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 27 November 2020. 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. The development application was made by Peter and Kathleen Robinson who are the owners of the land (20 Surfside Avenue), and the directors of the company which owns the land (18 Surfside Avenue), to which the development application relates to and which is known as 18-20 Surfside Avenue, Clovelly and is legally described as Lot E and Lot F in DP 419534 in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation). 2. The proposed development is for the purposes of a "dwelling house" as defined in the Dictionary to Randwick Local Environmental Plan 2012 (LEP 2012). 3. Pursuant to LEP 2012, the subject site is zoned R2 Low Density Residential. Development for the purposes of a "dwelling house" is permissible with consent in accordance with the Land Use Table relating to Zone R2 Low Density Residential in LEP 2012. In determining the development application, I have had regard to the objectives of the zone. 4. The development application complies with the development standards for maximum height and floor space ratio in LEP 2012. Pursuant to clause 4.1 of LEP 2012, the minimum subdivision lot size is 400m2. The development application proposes a variation to the minimum lot size standard. 5. The Applicant has provided a written request pursuant to clause 4.6(3) of LEP 2012 seeking to justify the contravention of the minimum subdivision lot size development standard in clause 4.1 RLEP 2012 (prepared by Lockrey Planning and Development Solutions Pty Ltd dated November 2020). I have reviewed the request and, in accordance with cl 4.6 of LEP 2012, I am satisfied that: 1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2012). 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP 2012). 3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met. 4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the B4: Mixed Use Development zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met. 5. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) of the LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action Pty Ltd v Woollahra Municipal Council 236 LGERA 256; [2018] NSWLEC 118 at [29]). Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 6. The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control. 1. In determining the development application, I have taken into consideration the factors listed at cl 6.2(3) of LEP 2012 in relation to earthworks. Further, I find that the development satisfies the requirements of cl 6.4(3) of LEP 2012 in relation to stormwater. 2. The subject site is located with the area mapped under LEP 2012 as 'Foreshore Scenic Protection'. Clause 6.7 of LEP 2012 applies. After consideration of the application and my observations on the site view, I am satisfied that the development: 1. is located and designed to minimise its visual impact on public areas of the coastline, including views to and from the coast, foreshore reserves, open space and public areas, and 2. contributes to the scenic quality of the coastal foreshore. 1. 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. 2. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 3. 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 LEC Act are: 1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of Annexure 'A'. 2. The clause 4.6 request dated 25 November 2020 prepared by Lockrey Planning and Development Solutions in relation to the minimum subdivision lot size pursuant to clause 4.1 of Randwick Local Environmental Plan 2012 is well founded and upheld. 3. The appeal is upheld. 4. Development Application DA/381/2019 for: 1. Demolition of the existing dwelling and 3 garage structures at 18 and 20 Surfside Avenue, Clovelly; 2. Retention of two garage structures at 20 Surfside Avenue; 3. Boundary adjustment between 18 and 20 Surfside Avenue; and 4. Construction of a part 2 and part 3 storey dwelling house at 18 Surfside Avenue, Clovelly including swimming pool and new vehicular access; is approved subject to the conditions at Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (371966, 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: 04 December 2020