Land and Environment Court New South Wales Medium Neutral Citation: Sepasspour v Randwick City Council [2022] NSWLEC 1585 Hearing dates: Conciliation conference held 25 August, 13, 27 and 30 September 2022, final agreement filed 4 October 2022 Date of orders: 25 October 2022 Decision date: 25 October 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA 161/2022 and rely upon amended plans and documents referred to in condition 1 at Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $4,500. (3) The Applicant's written request, pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the RLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA 161/2022 (as amended) for the demolition of existing structures and construction of a residential flat building comprising three units, basement car parking, landscaping and associated works at 56 Bream Street, Coogee, subject to the conditions contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential flat building – cl 4.6 written request – height of buildings – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl55 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 4.3, 4.6, 5.21, 6.1, 6.2, 6.4, 6.7, 6.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Category: Principal judgment Parties: Christopher Sepasspour (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2022/140984 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 161/2022 (the DA) by Randwick City Council (the Respondent). The DA sought consent for demolition of existing structures, construction of a four storey residential flat building comprising three units, basement parking for four vehicles, three bicycle spaces and associated landscape works at 56 Bream Street, Coogee (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 August, 13, 27 and 30 September 2022. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published in February 2022, the matter commenced with a site view before resuming by Microsoft Teams. 4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 5. Of particular note, the DA has been amended during the conciliation conference so as to resolve the contentions initially raised by the Respondent, which in turn related to issues of exceedance of the relevant floor space ratio (FSR), inappropriate building and streetscape character, excessive wall height, excessive bulk and scale, impaired design quality, and visual privacy and overshadowing impacts, amongst other contentions. 6. The design amendments include changes to reduce the bulk and scale of the building, accompanied by a resultant reduction in the FSR, improved privacy measures mitigating against cross viewing between neighbouring dwellings, and a revised roof form that is compatible with the desired future character of the area. Additionally, further survey information was prepared to quantify an area of building height non-compliance affecting a portion of the upper level of the proposal, which is now sought to be resolved by the provision of a written request to vary the relevant height of building development standard. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 10. The original DA was publicly notified from 7 April to 27 April 2022. Nine submissions were received by the Respondent, which raised concerns including excessive building bulk, scale and height, incompatible streetscape character, privacy impacts, overshadowing of private open space, tree loss and potential geotechnical impacts. 11. At the commencement of the conciliation conference, one resident objector addressed the Court emphasising concerns for visual privacy, potential overshadowing of roof-mounted photovoltaic panels and overshadowing of private open space. 12. The parties agree that the amended DA satisfactorily resolves the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 13. The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential, and the proposed development - characterised as residential flat building - is permissible with consent. 14. The parties agree, and I am satisfied, that all principal development standards of the RLEP have been met by the DA, with the exception of cl 4.3, Height of buildings, which establishes a height of building standard of 12m for the site. 15. In such an instance, cl 4.6(3) of the RLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 16. Clause 4.6(4) of the RLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 17. Additionally, cl 4.6(4)(b) of the RLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter. 18. As required by cl 4.6 of the RLEP, the Applicant has provided a written request (prepared by GSA Planning and dated October 2022) seeking to vary the height of buildings development standard. 19. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard for the following reasons: 1. The amended DA exceeds the 12m height of building standard. The development proposes a maximum height of 14.85m above existing ground level, which is 2.85m greater than the standard, or a variation of approximately 23%. 2. Of note, the extent of the building height exceedance is limited to a relatively modest portion of the south-western corner of the upper-most level of the proposed building and arises as a consequence of an excavated sub-grade laundry and storeroom within the existing dwelling. By definition, building height must be measured from existing ground level, and in this instance from the floor level of the sub-grade space. 3. The objectives of the RLEP Zone R3 Medium Density Residential land use zone include providing for the housing needs of the community within a medium density residential environment, providing a variety of housing types, to recognise the desirable elements of the streetscape, and protect the amenity of residents. I am satisfied the amended DA meets these objectives. 4. The objectives of cl 4.3 of the RLEP include ensuring the size and scale of development is compatible with the desired future character of the locality and ensuring that development does not adversely impact on the amenity of neighbouring properties in terms of bulk, privacy, overshadowing and views. I am satisfied the amended DA meets these objectives. 5. The amended DA resolves the Respondent's contentions, and in particular the upper-most storey of the building has been revised to now present as a mansard roof form and thereby minimise visual impacts and reduce the perceived scale of the proposal across the site boundaries. 6. The area of height exceedance is not visible from the primary street frontage along Bream Street and results in a cohesive roof form and overall building composition. I am satisfied the variation to the height of building development standard brings with it no material environmental impacts, a reduction in privacy or unreasonable overshadowing. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to maximum building height and I uphold the written request. 2. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the RLEP, Flood planning, the site is not identified within a flood planning area and consequently cl 5.21 is not enlivened by the DA. 3. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the RLEP, Acid sulfate soils, the site is mapped within a Class 5 Acid Sulfate Soils area. However, the DA involves earthworks which are unlikely to lower the water table at Class 1-4 land within 500m of the subject site below 5m Australian Height Datum. Accordingly, the parties agree, and I am satisfied, that an Acid Sulfate Soils Management Plan is not required. 4. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the RLEP, Earthworks, the Applicant has provided a Geotechnical Report prepared by Precision Engineering Group and dated 21 March 2022. This report concludes that proposed earthworks and excavation will not have a detrimental impact on the soil stability or the amenity of neighbouring dwellings. The proposed extent of excavation is constrained by the size of the site and set back from adjoining properties. Agreed conditions of consent reflecting the report's recommendations are imposed to mitigate against any potential impacts of earthworks. 5. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.4 of the RLEP, Stormwater management. The Applicant has prepared stormwater plans (prepared by Burgess, Arnott & Grava Pty Ltd and dated June 2021) addressing the matters for consideration set out in cl 6.4(3). Conditions of consent have been imposed to ensure implementation of the plans. 6. The parties agree, and I am satisfied, that pursuant to cl 6.7 of the RLEP, Foreshore scenic protection area, the site is situated within the foreshore scenic protection area. This clause requires the consent authority to be satisfied the proposal is located and designed to minimise its visual impact on public areas of the coastline and contributes to the scenic quality of the coastal foreshore. I am satisfied that, by reducing the bulk and scale of the amended DA, it has the effect of reducing the proposal's visibility from the foreshore. 7. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.10 of the RLEP, Essential services. The site is currently serviced for residential use and appropriate services exist for the purposes of the amended DA. 8. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree the site has historically been used for residential purposes not associated with contamination. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. Accordingly, I am satisfied the amended DA addresses the matters outlined in cl 4.6 of SEPP Resilience and Hazards. 9. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX certificate (dated 29 September 2022) has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate. 10. For the elimination of doubt, I am satisfied, that the amended DA, despite its characterisation as a residential flat building, is not subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, as a consequence of it comprising fewer than four dwellings. 11. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 12. The Court notes that: 1. Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the agreement of the Respondent. 2. The amended DA documents were uploaded to the NSW Planning Portal on 30 September 2022. 3. The Applicant has filed the amended DA with the Court on 30 September 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA 161/2022 and rely upon amended plans and documents referred to in condition 1 at Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $4,500. 3. The Applicant's written request, pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the RLEP, is upheld. 4. The appeal is upheld. 5. Consent is granted to Development Application DA 161/2022 (as amended) for the demolition of existing structures and construction of a residential flat building comprising three units, basement car parking, landscaping and associated works at 56 Bream Street, Coogee, subject to the conditions contained at Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court 140984.22 (Annexure A) (421814, 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: 25 October 2022