Land and Environment Court New South Wales Medium Neutral Citation: BMA Urban Planning Consultants Pty Ltd v Randwick City Council [2022] NSWLEC 1388 Hearing dates: Conciliation conference 13 July 2022 Date of orders: 22 July 2022 Decision date: 22 July 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $6,760.00. (2) The appeal is upheld. (3) Development Application DA/533/2021 for the demolition of existing structures and construction of a part 3 and part 4 storey residential flat building in 2 built forms comprising nine apartments, basement parking, landscaping and associated works at 5 Severn Street, Maroubra is determined by the granting of consent, subject to the conditions in Annexure "A" to these orders. Catchwords: DEVELOPMENT APPLICATION: demolition and construction of a new residential flat building – amended plans – planning and urban design experts agree contentions are resolved - agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cll 50, 55 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 2.7, 6.1, 6.2, 6.4, 6.7 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 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Texts Cited: Department of Planning and Environment, Apartment Design Guide (July 2015) Category: Principal judgment Parties: BMA Urban Planning Consultants Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) T Poisel (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Madison Marcus Law Firm (Applicant) Randwick City Council (Respondent) File Number(s): 2021/290858 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of Development Application No DA/533/2021 by Randwick City Council. The development application seeks consent for the demolition of existing structures, and construction of a part 3 and part 4 storey residential flat building in 2 built forms comprising nine apartments, basement parking, landscaping, and associated works. The development is proposed at 5 Severn Street, Maroubra (Lot 15-18 in Strata Plan 1813). 2. The appeal was initially listed for a conciliation conference on 21 March 2022 in accordance with s 34 of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached at the conciliation, which was terminated, and the matter was listed for hearing. Following the conciliation discussions continued between the parties, The discussions led to the production of amended plans and documentation, which along with expert evidence, assisted an agreement in principle being reached between the parties on the first day of the scheduled hearing. At the request of the parties the matter was listed for a further conciliation conference on 13 July 2022. I presided at the further conciliation conference. A signed agreement pursuant to s 34(3) of the LEC Act was filed with the Court on 13 July 2022. The agreement is that the appeal be upheld, and the development application be approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act. 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 is made with the consent of the Owners Corporation for Strata Plan 1813. 2. The development application was notified to adjoining and proximate properties for a period of 14 days in September 2021. Further, adjoining residents addressed the Court as part of the onsite component of the proceedings. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either an amendment to the application or through the imposition of conditions of consent. For example, in my view, the issue of potential impacts on the adjoining structure during construction is addressed by the imposition of condition 38, 39, and the requirement for dilapidation reports and the development of a construction management plan. Further, by reference to the architectural plans and the solar analysis, I am satisfied that any overshadowing impact on the adjoining property is minor and reasonable. Finally, the issue of view loss was raised by a number of residents. I note that it was the agreed position of the planning experts that the development, as amended, demonstrates reasonable view sharing and is acceptable. I accept the planning expert's agreement, and I note that the annexed conditions of consent require the roof over the level four balcony on the north to be further reduced to improve the retention of views from adjoining properties. 3. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of SEPP RH. The Preliminary Site Investigation includes a review of the site history and concludes that the potential for contamination on the site is low. There is no indication of previous uses that would cause contamination. The existing building is proposed to be demolished, which is to be managed in accordance with Conditions 48 and 49 in Annexure A. I note that these conditions include the requirement for a clearance certificate to be obtained at the completion of demolition. I accept that the site will be suitable for the proposed development satisfying cl 7 of SEPP 55. 5. State Environmental Planning Policy No 65 (Design Quality of Residential Apartment Development) (SEPP 65) applies to the development. The development application is accompanied by a design verification statement prepared by a registered architect, meeting the requirements of cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000 (the Regulation). The development application was referred to the Council's design review panel pursuant to cl 28(1) of SEPP 65. In determining the development application, I have given consideration to the provisions of SEPP 65, the verification statement, the advice of the panel, and the provisions of the Apartment Design Guide. I am satisfied that the design quality of the development when evaluated against the design principles is acceptable. 6. Pursuant to the provisions of the Randwick Local Environmental Plan 2012 (LEP 2012) the site is zoned R3 Medium Density Residential and development for the purpose of a residential flat building is permitted with consent in the zone. Demolition is permitted with consent: cl 2.7 of LEP 2012. The proposed development complies with the development standards applicable under LEP 2012. Further, I am satisfied that the following preconditions to consent are satisfied for the reasons detailed: 1. Clause 6.1: Acid Sulfate Soils. The site is mapped within the class 5 acid sulfate soils area. The geotechnical report prepared by the Applicant concludes that the proposed construction will not cause a lowering of the water table. The requirements of the clause are satisfied. 2. Clause 6.2: Earthworks. The parties are satisfied, and I agree, that the proposed earthworks will not have a detrimental impact on environmental functions and process, neighbouring uses, cultural or heritage items or features of the surrounding land. In determining the development application, I have given consideration to the matters at cl 6.2(3) of LEP 2012. 3. Clause 6.4: Stormwater Management. The parties are satisfied, and I agree, that the states of satisfaction required at cl 6.4(3) of LEP 2012 are met by the proposed development and the revised stormwater plans prepared by the Applicant and filed with the Court on 16 May 2022. 4. Clause 6.7: Foreshore Scenic Protection. The subject site is mapped within the 'Foreshore scenic protection area' on the relevant map in LEP 2012. I am satisfied on the basis of the amended plans, that the development is located and designed to minimise its visual impact. I accept and adopt the agreement of the planning experts in their joint report in this regard. Further, I am satisfied that the development application has been designed to minimise the impact on views to and from the foreshore. So much is demonstrated in the Applicant's view loss montages, filed with the Court on 7 July 2022. The states of satisfaction required at cl 6.7(3) of LEP 2012 are met by the proposed development. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. Randwick City Council as the relevant consent under cl 55(1) of the Regulation, agrees to the Applicant amending development application DA/533/2021 lodged 1 September 2021 in accordance with the following architectural plans prepared by Aleksandar Projects, amended design statement and amended BASIX certificate as follows: Plan Drawn by Dated DA000 (Cover Page + Context + Drawing list) Revision D Aleksander Projects 01 July 2022 DA001 (Context Analysis) Revision B Aleksander Projects 01 April 2022 DA002 (Site Analysis + Demolition Plan) Revision C Aleksander Projects 12 April 2022 DA100 (Site + Roof Plan), Revision D Aleksander Projects 05 July 2022 DA101 (Basement 02 Plan), Revision B Aleksander Projects 01 April 2022 DA102 (Basement 01), Revision B Aleksander Projects 01 April 2022 DA103 (Level 01 Plan), Revision D Aleksander Projects 07 July 2022 DA104 (Level 02), Revision C Aleksander Projects 01 July 2022 DA105 (Level 3 Plan), Revision C Aleksander Projects 01 July 2022 DA106 (Level 4 Plan), Revision D Aleksander Projects 05 July 2022 DA200 (Section AA), Revision E Aleksander Projects 07 July 2022 DA201 (North + South Elevations), Revision D Aleksander Projects 05 July 2022 DA202 (East + West Elevations), Revision E Aleksander Projects 07 July 2022 DA203 (Section BB + CC), Revision C Aleksander Projects 07 July 2022 DA300 (Shadow Diagrams) Revision B Aleksander Projects 01 April 2022 DA301 (Shadow Diagrams) Revision D Aleksander Projects 05 July 2022 DA302 (Shadow Diagrams) Revision D Aleksander Projects 05 July 2022 DA302 (Shadow Diagrams) Revision D Aleksander Projects 05 July 2022 DA303 (Views from the Sun) Revision B Aleksander Projects 01 April 2022 DA304 (Views from the Sun) Revision B Aleksander Projects 01 April 2022 DA305(Elevational Shadow Diagrams) Revision C Aleksander Projects 01 July 2022 DA306 (Cross Ventilation diagrams) Revision B Aleksander Projects 01 April 2022 DA400 (Schedule of External Finishes) Revision B Aleksander Projects 01 April 2022 DA500 (GFA Calculations) Revision B Aleksander Projects 01 April 2022 DA600 (Silver Level liveable plans) Revision B Aleksander Projects 01 April 2022 DA700 (Building Height Plane) Revision C Aleksander Projects 05 July 2022 DA701 (Wall Height Plane) Revision B Aleksander Projects 05 July 2022 DA800 (Privacy Plan) Revision B Aleksander Projects 01 April 2022 BASIX Certificate 1226342M-04 8 July 2022 Amended Design Verification Certificate Aleksander Projects July 2022 1. The Applicant lodged the preceding amended plans and documents to the NSW Planning Portal on 13 July 2022. 2. The amended development application was filed with the Court on 13 July 2022. Orders 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $6,760.00. 2. The appeal is upheld. 3. Development Application DA/533/2021 for the demolition of existing structures and construction of a part 3 and part 4 storey residential flat building in 2 built forms comprising nine apartments, basement parking, landscaping and associated works at 5 Severn Street, Maroubra is determined by the granting of consent, subject to the conditions in Annexure "A" to these orders. .………………………… D M Dickson Commissioner of the Court Annexure A (541215, 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: 22 July 2022