Land and Environment Court New South Wales Medium Neutral Citation: Griffiths v Randwick City Council [2023] NSWLEC 1163 Hearing dates: Conciliation conference on 1 March 2023 Date of orders: 06 April 2023 Decision date: 06 April 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court orders: (1) Leave is granted to the Applicant to rely on the amended documentation listed in Condition 1 of Annexure A (2) The appeal is upheld. (3) Modification application DA/230/2021/A, for the modification to the dwellings, landscaping and engineering plans in respect of the original consent for demolition of existing structures and construction of two two-storey dwelling houses (one with basement level), subdivision to create two Torrens title allotments, addition of two swimming pools, landscaping and associated works at 159 Boyce Road, Maroubra, is determined by the grant of consent, subject to the conditions of consent in Annexure A. Catchwords: Modification Application –– modifications to approved plans – reduced impact due to amended plans - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.55, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, ss, 34, 34AA Randwick Local Environmental Plan 2012, cll 4.4, 5.10, 6.1, 6.4, 6.7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: Randwick Development Control Plan 2013 Category: Principal judgment Parties: Mark Griffiths (Applicant) Randwick City Council (Respondent) Representation: Counsel: M Parrino (Solicitor) (Applicant) S Flanigan (Respondent) Solicitors: Project Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2022/307143 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Randwick City Council (Council) of Modification Application No. DA/230/2021/A (the Mod DA). In exercising the functions of a consent authority on the appeal, the Court has the power to determine the Mod DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The Mod DA relates to land legally described as Lot 1 DP 963584 and known as 159 Boyce Road, Maroubra (the site). The site is located on the southern side of Boyce Road, between Garden Street to the west and Cooper Street to the east. The site has a rear access to Green Street on the south. Pedestrian access is gained via an elevated public footpath above an embankment which is behind a 1.5m-2m high sandstone retaining wall on the public domain. The site contains a single storey detached rendered dwelling with tile roof with a fibre cement garage towards the rear. 3. Residential development surrounding the site on Boyce Road comprises generally detached, mostly two storey dwellings, although there are some single storey dwellings. Opposite the Green Street boundary is seniors housing of the Southern Cross Care Kildare Residential Aged Care, and the Church of the Holy Family and its adjacent St Aidan's Catholic Primary School. 4. The Mod DA seeks consent to modify the approved development by way of amendments to the dwellings, landscaping and engineering plans. The original DA consent is for demolition of existing structures and construction of two two-storey dwelling houses (one with basement level), subdivision to create two Torrens title allotments, addition of two swimming pools, landscaping and associated works. 5. The Mod DA was lodged on 30 August 2022 and was notified for a period of 14 days from 5 September 2022. Two independent submissions were received objecting to the development application. 6. On 14 October 2022, the Applicant commenced proceedings in Class 1 of the Land and Environment Court's jurisdiction appealing against the deemed refusal of the modification application. On 7 November 2022, the Council filed its Statement of Facts and Contentions with the Court. 7. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the LEC Act, at which I presided, on 1 March 2023, which commenced in Court. 8. At 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 would be acceptable to the parties. The signed agreement was filed on 2 March 2023 and is supported by a Joint Jurisdictional Note provided by the parties on the same date. The agreement involves the Court approving the modification application subject to conditions of consent pursuant to s 4.55(2) of the EPA Act. 9. Under 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. 10. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons: 1. The development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, this being the test required by s 4.55(2)(a) of the EPA Act. The modifications do not change the development in any material way. 2. The notification requirements of s 4.55(2)(c) of the EPA Act have been met and, consistent with s 4.55(2)(d), the parties, and the Court have considered the submissions made with respect to the proposed modification. 3. The Applicant has amended the Mod DA with the agreement of Council. The amendments have been made in response to the concerns of the Respondent and in consideration of the reasons for the decision of the Randwick Local Planning Panel which imposed original conditions which form, in part, the subject of the Mod DA. The Mod DA, as amended, results in a lesser environmental impact than originally proposed by the modified DA. 4. The proposed modification is consistent with all relevant objectives and provisions for the carrying out of development on land within Zone R2 Low Density Residential under the Randwick Local Environmental Plan 2012. 5. The principal development standards are not relevant to the Mod DA as the dwellings are the subject of the original consent and relevant conditions apply. The Mod DA does not propose a change to the height of the buildings and in respect of the dwelling fronting Boyce Street, there is no maximum floor space ratio as the lot is less than 300 square metres (see clause 4.4(2B)). 6. Clause 5.10 of the RLEP does not apply to the Land it is not a locally heritage item or within a heritage conservation area. 7. The Land is not located within the acid sulfate soils area shown on Acid Sulfate Soils Map - Sheet ASS_008, therefore further consideration of the matters raised under cl 6.1 of the RLEP is not required. 8. In regard to cl 6.4 of the RLEP, stormwater management plans were submitted to Council as part of the original DA. I am satisfied that the matters listed under clause 6.4(3) of the RLEP have been addressed during the original DA assessment. 9. Clause 6.7 of the RLEP is not applicable as the Land is not located within a "Foreshore scenic protection area". 10. In relation to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the Respondent has considered whether the site is contaminated. The historical use of the site for residential purposes ensures that contamination is unlikely, and I am satisfied that the considerations listed in s4.6 of the Resilience and Hazards SEPP have been addressed. 11. Pursuant to cl 3(1)(a) of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), a BASIX Certificate was provided with the original DA and the modification is such that a further certificate is not required, being works largely confined to a basement area. 12. The relevant provisions contained in the Randwick Development Control Plan 2013 (RDCP) have been identified in the Statement of Facts and Contentions and relate to carparking and access (Part C1, Section 6 and Part B7, Transport, Traffic Parking and Access). 13. The RDCP provisions identified in the SOFAC, are considered to be addressed by the Mod DA, as amended by the conditions. The Mod DA, as amended by the conditions, addresses the streetscape by ensuring the facilities are not visually dominating, and will ensure the proposed development is integrated into the streetscape as a consequence of retaining a large section of the existing sandstone retaining wall, and reusing those sandstone blocks within the new retaining walls. The Mod DA, as amended by the conditions, provides for a single width garage facing the primary site frontage of a lot less than 12m wide. The Mod DA conditions provide for splays in accordance with the Australian Standard, ensuring compliance in terms of safety and appropriate sight lines. I am satisfied that the Mod DA, as amended, is consistent with the provisions in the RDCP. 1. As I have concluded that the parties' agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' agreement. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 3. 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/230/2021/A to rely upon the documents specified in Condition 1 of Annexure A. 2. The Amended Application identified in Annexure A has been lodged on the NSW planning portal on 1 March 2023. 3. That the Amended Application was filed with the Court 1 March 2023. 1. The Court orders that: 1. Leave is granted to the Applicant to rely on the amended documentation listed in Condition 1 of Annexure A 2. The appeal is upheld. 3. Modification application DA/230/2021/A, for the modification to the dwellings, landscaping and engineering plans in respect of the original consent for demolition of existing structures and construction of two two-storey dwelling houses (one with basement level), subdivision to create two Torrens title allotments, addition of two swimming pools, landscaping and associated works at 159 Boyce Road, Maroubra, is determined by the grant of consent, subject to the conditions of consent in Annexure A. L Sheridan Acting Commissioner of the Court Annexure A Annexure B ********** 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: 06 April 2023