Land and Environment Court New South Wales Medium Neutral Citation: Cavolic v Randwick City Council [2022] NSWLEC 1403 Hearing dates: Conciliation conference on 19, 20 July 2022 Date of orders: 2 August 2022 Decision date: 02 August 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld (2) Development application No 420/2021 (as amended) is approved, thereby giving consent to the demolition of existing improvements including pool and pavements, and the erection of a new 2 storey single dwelling house with basement parking and inground pool at Lot 21 DP 543292 (being 96 Prince Edward Street, Malabar) subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – new dwelling – amended plans – 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 2021, cl 37 Land and Environment Court Act 1979, ss 34, 34AA Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 6.2, 6.4 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Marko Cavlovic (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Chryssochoides (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Piper Alderman (Applicant) Randwick City Council (Respondent) File Number(s): 2022/74262 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Randwick City Council of development application number 420/2021. The development application seeks consent for the demolition of the existing dwelling house with associated structures and then the construction of a two storey detached dwelling with basement parking and a new swimming pool. The development is proposed at 96 Prince Edward Street Malabar (Lot 21 DP 543292). 2. The appeal was listed for mandatory conciliation on 19 July 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference. Prior to the conciliation, amended plans and documentation were prepared and at the conciliation conference agreement was reached between the parties. That decision is that the appeal is upheld, the development application is 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 was made with the consent of the owner of the subject site. 2. The development application was notified by the Respondent from 21 July 2021 to 4 August 2021. Further, the amended plans were briefly shown to the objectors on site at the commencement of the conciliation where I took oral evidence of their concerns. 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. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either the amendment to the application or through the imposition of conditions of consent. 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 s 4.6 of SEPP RH. The Statement of Environmental Effects includes a review of the site history which indicates that it has been used for residential purposes since the land was originally subdivided. There is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development. 5. Pursuant to the provisions of the Randwick Local Environmental Plan 2012 (LEP 2012) the site is zoned R2 Low Density Residential zone. The proposed development, dwelling house, is permitted with consent in the zone. In determining the development application, I have given consideration to the zone objectives. 6. The proposed development is compliant with the maximum height control of 9.5m pursuant to cl 4.3 of LEP 2012. 7. The proposed development is compliant with the maximum floor space control of 0.75:1 pursuant to cl 4.4 of LEP 2012. 8. As required by cl 6.2: Earthworks in LEP 2012 in determining the development application I have given consideration to the matters listed at subcl (3). 9. As required by cl 6.4: Stormwater in LEP 2012 I am satisfied that the development is designed to maximise the use of permeable surfaces and avoids any significant adverse impacts of stormwater runoff on adjoining properties. 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, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. In making the orders, the Court also notes that: 1. Randwick City Council as the relevant consent authority for the purposes of cl 37 of the Environmental Planning and Assessment Regulation 2021 (NSW) agrees to the Applicant amending development application no. 420/2021; 2. The amended application and revised BASIX Certificate were uploaded to the NSW Planning Portal on 21 July 2022. 1. The Court orders that: 1. The appeal is upheld 2. Development application No 420/2021 (as amended) is approved, thereby giving consent to the demolition of existing improvements including pool and pavements, and the erection of a new 2 storey single dwelling house with basement parking and inground pool at Lot 21 DP 543292 (being 96 Prince Edward Street, Malabar) subject to the conditions set out in Annexure A. .………………………… D M Dickson Commissioner of the Court Annexure A (372391, 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: 02 August 2022