Land and Environment Court New South Wales Medium Neutral Citation: Viewland Investment Pty Ltd v Randwick City Council [2021] NSWLEC 1322 Hearing dates: 22 April 2021 Date of orders: 8 June 2021 Decision date: 08 June 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of annexure 'A'. (2) The Applicant is to pay to the Respondent's costs as thrown away pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3) Appeal upheld. (4) Development Application DA/362/2020 for demolition of existing dwelling and construction of a residential flat building comprising 8 apartments, basement car parking, landscaping and associated works at 74 St Marks Road Randwick is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – Residential flat building – amended plans – orders by consent of the parties Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, regs 49, 50(1AB), 143A Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 5.10, 6.2, 6.4 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28 Category: Principal judgment Parties: Viewland Investment Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Knox (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Pikes Verekers Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2021/41265 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of the application by Randwick City Council (the Respondent) of Development Application No DA/362/2020. The development application seeks consent for demolition of the existing dwelling and construction of a four-storey residential flat building at 74 St Marks Road, Randwick (the site). 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 conciliation on 22 April 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). Following 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. This agreement arose, in part, on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 20 May 2021. 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 lodged with the consent of the owner of the land to which the development relates: reg 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). 2. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. I accept that the likelihood of contamination is low. 3. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged. 4. The development is required to comply with the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and the provisions of the Regulation. The Applicant has filed a Design Verification Statement that meets the requirements of regs 50(1AB) and 143A of the Regulation and cll 28(2)(b) and (c) of SEPP 65. In making the decision I have taken into consideration the advice of the Design Review Panel in accordance with cl 28(2)(a) of SEPP 65. Further, I am satisfied the design quality principles and the Apartment Design Guide have been taken into account in accordance with cl 28(2) of SEPP 65. 5. Pursuant to the Randwick Local Environmental Plan 2012 (LEP 2012) the subject site is zoned R3 Medium Density Residential. The proposed development, residential flat building, is permissible with consent in the zone. As required by cl 2.3(2) of LEP 2012 I have taken into consideration the objectives of the zone in determining the development application. 6. The development is compliant with the development standards in LEP 2012 for maximum height (cl 4.3) and floor space ratio (cl 4.4). 7. As required by cl 5.10(4) of LEP 2012 I have given consideration to the potential for the proposed development to impact on the heritage significance of the local heritage item: "Farnham House" (3 Farnham Avenue, Randwick). I am satisfied that the application will not have a detrimental impact on the significance of this item. 8. In determining the development application, I have given consideration to the matters listed at cl 6.2(2) of LEP 2012 in relation to any impacts arising from earthworks ancillary to the development. I accept the agreement of the parties that the Geotechnical Report dated 8 April 2020 and the various conditions satisfactorily address the matters. 9. Clause 6.4: Stormwater Management in LEP 2012 applies to the subject site. I am satisfied that the development is consistent with the requirements of cl 6.4(3) of LEP 2012. 10. 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 Applicant is to pay to the Respondent's costs as thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. Appeal upheld. 4. Development Application DA/362/2020 for demolition of existing dwelling and construction of a residential flat building comprising 8 apartments, basement car parking, landscaping and associated works at 74 St Marks Road Randwick is approved subject to the conditions at Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (406478, pdf) Plans (9072749, 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: 08 June 2021