Land and Environment Court New South Wales Medium Neutral Citation: Liu v Randwick City Council [2022] NSWLEC 1587 Hearing dates: Conciliation conference held on 19 October 2022 Date of orders: 26 October 2022 Decision date: 26 October 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. DA/614/2021, which as amended, seeks for demolition of existing structures and construction of a three-storey dwelling house with basement and upper level balconies, cabana and outbuilding at the rear, decking, landscaping and associated works, on Lot B in Deposited Plan 320680, also known as 10 Torrington Street, Maroubra is determined by grant of consent, and subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – dwelling construction - conciliation conference conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34AA Randwick Local Environmental Plan 2012, cll 2.3, 4.3, 4.4 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 3 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Texts Cited: Randwick Development Control Plan 2013 Category: Principal judgment Parties: Eric Yi-Kun Liu (Applicant) Randwick City Council (Respondent) Representation: Counsel: M Staunton (Barrister)(Applicant) V McGrath (Solicitor)(Respondent) Solicitors: Hartley Solicitors (Applicant) Randwick City Council (Respondent) File Number(s): 2022/181444 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application DA/614/2021 (the application) by Randwick City Council (the Council), which as amended, seeks demolition of existing structures and the construction of a three-storey dwelling house with basement, landscaping and ancillary works, on Lot B in Deposited Plan 320680, also known as 10 Torrington Street, Maroubra (the site). Background 1. The application (DA/614/2021) was lodged with Council on 7 October 2021and was notified to surrounding residents, with three submissions in objection received. After internal review and consideration by the Randwick Local Planning Panel, the application was refused on 9 June 2022. 2. The applicant appealed against the refusal of the application, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), which commenced with an onsite view at the request of the parties, and then proceeded onsite. 4. As part of the conciliation conference, the applicant sought to amend the application under appeal, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), as agreed by the Council. 5. Based on the amended application and agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved, and issues raised by residents have been considered. It is agreed there are no jurisdictional issues remaining. The decision of the parties is to uphold the appeal and request the Court grant consent to DA/614/2021, with conditions. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its power under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to determine a grant consent to application DA/614/2021, subject to conditions described in Annexure 'A', which are made pursuant to s 4.17(1). Jurisdictional prerequisites 1. The amended application has the consent of the owner of the related land, pursuant to cl 49 of the EPA Reg. 2. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining the application. The following jurisdictional requirements have been considered and the Court is satisfied are addressed: 1. Randwick Local Environmental Plan 2012 (RLEP): 1. Pursuant to cl 2.3 of the RLEP, the proposed residential development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court is permissible with consent. It is assessed that the amended application sufficiently addresses all the relevant objectives, aims, standards and requirements of the RLEP. 2. It is noted that the application, as amended, does not result in a breach in the height or floor space ratio development standards, pursuant to cll 4.3 and 4.4 of the RLEP, respectively, because the amendments made to the dwelling design, result in a reduction in the height of building and excavation area. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. The Council have advised that the site has historically been used for residential purposes, and together with the agreed conditions of consent, the Court is satisfied that the amended application addresses the relevant requirements of Chapter 4, specifically cl cl 4.6 of SEPP Resilience. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP): 1. Pursuant to cl 3(1)(a) of the BASIX SEPP, a BASIX Certificate (1237024S_02) issued on 20 October 2022 is relevant to the proposed development, as amended. The BASIX Certificate is identified in the agreed conditions of consent and supports the amended application by upload to the NSW Planning Portal. 1. Randwick Development Control Plan 2013 (RDCP): 1. The Court is satisfied that the relevant requirements of the RDCP are addressed, based on the amended plans, supporting documents to the application and agreed conditions of consent. The original application was publicly notified in accordance with the RDCP. The Court is advised that the parties have considered in their merit assessment issues raised in objection and amendments were made to the design relevant issues in response. Grant of consent 1. Based on the plans and documents supporting the amended application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders to grant consent, as sought. 2. The Court is satisfied that the Council has undertaken the appropriate merit assessment of the proposed development, including considering resident submissions. The Court notes that the objectors' issues regarding overshadowing, privacy and view have been relevantly considered by amendments to the application, after a merit assessment undertaken by Council. As observed by the Court whilst onsite, the water views are generally towards the east and north, with most dwellings oriented and elevated to obtain this view, and as a result, rear yards tend to be overlooked to some extent. The amenity of surrounding residences are not adversely affected by the amended application now before the Court. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that amended application DA/614/2021 should be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act. 4. 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. 5. The Court notes that: 1. Randwick City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA/614/2021. 2. The amended application documents were lodged on the NSW Planning Portal on 19 and 20 October 2022. 3. The amended application was filed with the Court on 19 and 20 October 2022. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA/614/2021, which as amended, seeks for demolition of existing structures and construction of a three-storey dwelling house with basement and upper level balconies, cabana and outbuilding at the rear, decking, landscaping and associated works, on Lot B in Deposited Plan 320680, also known as 10 Torrington Street, Maroubra is determined by grant of consent, and subject to the conditions set out in Annexure 'A'. ………………………… Sarah Bish Commissioner of the Court ********** Annexure A Amendments 27 October 2022 - Amended to reflect correct titles in legal representation. 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: 27 October 2022