Land and Environment Court New South Wales Medium Neutral Citation: Anderson v Randwick City Council [2023] NSWLEC 1166 Hearing dates: Conciliation conference on 04 April 2023 Date of orders: 12 April 2023 Decision date: 12 April 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent is granted to Development Application No. DA/482/2021 seeking the demolition of the existing dwelling and construction of a new two storey dwelling over a partly excavated basement, resulting in a three-storey form at part of the building, subject to conditions in Annexure A. Catchwords: APPEAL – development application – construction of a dwelling house – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, cll 27, 37, 38 Land and Environment Court Act 1979, ss 34, 34AA Randwick Local Environmental Plan 2012, cll 6.2, 6.4, 6.7 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Kerensa Anderson (Applicant) Randwick City Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Randwick City Council (Respondent) File Number(s): 2022/176448 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a 2-3 storey dwelling at 111 Victoria Street, Malabar. The development application was refused by Randwick City Council on 27 May 2022. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 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 in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 4 April 2023. I presided over the conciliation conference. 3. 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 was acceptable to the parties. The agreement was filed on the same date, following the Council's approval of an application for an amendment to a development application pursuant to cll 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). 4. The amendments to the development application include the shifting of the ground and first floors toward the street, such that the front setback is decreased from 6.538m to 4.7m, and the rear setback is increased from 9.69m to 11.52m at the ground floor and from 9.69m to 14.6m at the first floor. The increase in the rear setback results in a form which better follows the topography of the site and increases the view corridors from the adjacent property (109A Victoria Street) to Boora Point Headland. In addition, the amendments increase the basement wall setback to 900mm and reduce the floor area of a number of rooms. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement on the Jurisdictional Prerequisites. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Randwick Local Environmental Plan 2012 (RLEP). * The proposed development complies with the applicable development standards in the RLEP. * The development application includes earthworks for the provision of the basement level for car parking. Based on the geotechnical assessment prepared by STS Geotechnical, I have considered the matters set out in cl 6.2(3) of the RLEP. * Clause 6.4 of the RLEP requires the Court, in exercising the functions of the consent authority, to be satisfied of a number of matters concerning the use and re-use of stormwater. I am satisfied, based on the stormwater plans lodged with the development application, that the proposed development has a stormwater design that will capture rainwater and will avoid disturbance and impact of stormwater runoff, as required by cl 6.4(3). * The site is located within the foreshore scenic protection area, as a result of which cl 6.7 of the RLEP applies. Based on the analysis set out in the Statement of Environmental Effects dated July 2021 concerning views to the site from the coast, as well as the analysis set out in the joint report filed 17 March 2023 concerning view sharing, I am satisfied of the matters in cl 6.7(3). * Consistent with the requirements of cl 27 of the EPA Regulation 2021, the amended development application is accompanied by a BASIX certificate dated 24 March 2023. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated. 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 orders that: 1. The appeal is upheld. 2. Development Consent is granted to Development Application No. DA/482/2021 seeking the demolition of the existing dwelling and construction of a new two-storey dwelling over a partly excavated basement, resulting in a three-storey form at part of the building, subject to conditions in Annexure A. J Gray Commissioner of the Court 22.313312 Annexure A (401281, 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: 12 April 2023