Land and Environment Court New South Wales Medium Neutral Citation: EMCON Group Pty Ltd v Randwick City Council [2023] NSWLEC 1324 Hearing dates: Conciliation conference on 17 May 2023 Date of orders: 23 June 2023 Decision date: 23 June 2023 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application No DA/513/2022 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (2) The appeal is upheld. (3) Development Application No DA/513/2022 for demolition of existing structures and construction of a four-storey residential flat building containing four (4) apartments over basement level car parking for eight (8) vehicles, landscaping and siteworks at 132 Marine Parade, Maroubra is determined by the grant of consent subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environment Planning and Assessment Regulation 2021, cll 29, 37 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.7, 6.8, 6.9, 6.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, ss 15, 16, 17, 18, 19, 21 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.,10, 2.11, 4.6 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2002, cl 28 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, July 2015 Randwick City Council, Maroubra Bay Flood Study, June 2011 Randwick Development Control Plan 2013 Category: Principal judgment Parties: EMCON Group Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Whealy (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Randwick City Council (Respondent) File Number(s): 2022/378082 Publication restriction: No Judgment 1. COMMISSIONER: EMCON Group Pty Limited (the Applicant) has appealed the refusal by Randwick City Council (the Respondent) of its Development Application No DA/513/2022, made with owner's consent, for demolition of existing structures and construction of a four-storey residential flat building containing four (4) apartments over basement level car parking for eight (8) vehicles, landscaping and siteworks (the Proposed Development) at 132 Marine Parade, Maroubra (the Subject Site). 2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. The Applicant's Development Application was notified for 14 days from 27 October 2022 pursuant to the provisions of the Part A3 of the Randwick Comprehensive Development Control Plan 2013 (RDCP), and 2 submissions were received in response to the notification. These submissions have been considered during the development assessment process. 4. On 17 May 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant's amended development application, subject to conditions. 5. A site inspection had been undertaken prior to the commencement of the conciliation conference and no objectors sought to make submissions to the Court during the proceedings. 6. Under the Parties' agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant's amended development application, subject to conditions. 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. 8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H): 1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this: 1. the long-term use of the Subject Site has been for residential purposes, and no change of use for the site is proposed by the Applicant; 2. I am satisfied that the Subject Site is suitable for its intended use under the Proposed Development; and 3. I am further satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal. 1. Chapter 2 of the SEPP R&H includes provisions to manage development within coastal areas of New South Wales, and the Subject Site is mapped as "coastal environment area" and "coastal use area", and in relation to this the Parties agree, and I am satisfied, that the Proposed Development as amended satisfies the provisions of: 1. section 2.10 concerning development on land within the coastal environment area; and 2. section 2.11 concerning development of land within the coastal use area; 1. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX): 1. the Applicant has provided a BASIX certificate No 1102971M_06 dated 23 May 2023 in relation to the Proposed Development; and 2. I am satisfied that the relevant provisions of SEPP BASIX have been satisfied in relation to the Proposed Development. 1. In relation to the provisions of State Environmental Planning Policy No 65–Design Quality of Residential Apartment Development 2002 (SEPP 65): 1. clause 28(2) of SEPP 65 requires that the consent authority, or the Court, on appeal, should consider the design quality of the development when assessed against the design quality principles and the Apartment Design Guide (the ADG); and 2. section 29 of Environmental Planning and Assessment Regulation 2021 (the EP&A Regulation) provides a development application that relates to residential apartment development must be accompanied by a statement by a qualified designer; and 3. the Parties advise, and I am satisfied, that the Applicant's Design Verification Statement prepared by MHND Union dated 13 September 2022 and Design Report dated October 2022 as well as Apartment Design Guide Compliance Table dated 14 October 2022, satisfactorily address the design quality principles and other relevant provisions of the ADG, the provision of cl 28 of SEPP 65 and s 29 of the EP&A Regulation; 1. In relation to the provisions of State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) the Parties agree, and I am satisfied, that the Applicant's Development Application, as amended, satisfies the following relevant provisions of the Hosing SEPP: 1. the provisions of s 15 concerning requirements for imposition of conditions which are acceptable; 2. the provisions of s 16 concerning the application of the Housing SEPP in relation to which: 1. the Subject Site is zoned R3 Medium Density Residential under the provisions of Ryde Local Environmental Plan 2012 (RLEP), wherein residential flat buildings are a permissible land use with consent; 2. the amount of gross floor area (GFA) that is provided as affordable housing (located in Unit 1 and equal to 22% of GFA) exceeds 20%; and 3. the Proposed Development is located within the Greater Sydney Region and within an accessible area; 1. the provisions of s 17 concerning the floor space ratio (FSR) of the Proposed Development which complies with the provisions of this section as the development has an FSR of 1.06:1 in circumstances where the maximum allowable FSR is 1.124:1; 2. the provisions of s 18 concerning non-discretionary development standards and in relation to which 1. the Subject Site has an area greater than 450m2. 2. the Proposed Development, as amended, includes 195m2 or 36% of the site as landscaped area which complies with the 30% minimum requirement under s 18(2)(c); 3. the Proposed Development, as amended, includes 98m2 of deep soil area in satisfaction of the 15% minimum requirement and stipulated dimensions under s 18(2)(d); 4. the Proposed Development application does not comply with solar access requirements in s 18(2)(e) of the Housing SEPP. However, the Applicant has provided a written request pursuant to the provisions of cl 4.6 of RLEP, prepared by Planning Ingenuity dated 19 May 2023, and the Parties submit, and I am satisfied, that the request satisfies the provisions of cl 4.6(3) of RLEP. Further, I am satisfied that approval of the Proposed Development is in the public interest as it satisfies the provisions of cl 4.6(4)(a) of RLEP; 5. the Proposed Development includes 8 car parking spaces in satisfaction of s 18(2)(g) of the Housing SEPP; 6. the area of each apartment (Unit 1) in the Proposed Development complies with the applicable Apartment Design Guideline provisions for each type of apartment; 1. the provisions of s 19(3) concerning design requirements in relation to which the Parties agree, and I am satisfied, that the Development Application as amended is compatible with the desired future character of the area noting that the design of the building is compatible with contemporary styled flat buildings along Marine Parade, both existing and approved; 2. the provisions of s 21 concerning the requirement that the Proposed Development, or part thereof, must be used for affordable housing for at least 15 years, and: 1. the Parties have agreed to a condition of consent requiring a registered community housing provider manage the affordable housing component of the development, which is Unit 1, for at least 15 years; 1. in relation to the provisions of RLEP: 1. development for the purposes of a residential flat building is permitted with consent in the Subject Site's R3 Medium Density Residential zoning. 2. development on the Subject Site is subject to a maximum height of buildings development standard of 12m pursuant to the provisions of cl 4.3, and the Proposed Development Application has a maximum height of 12m is compliant with the standard; 3. development on the Subject Site is subject to a FSR development standard of 0.9:1 applies pursuant to cl 4.4 but a bonus FSR provision applies to the Proposed Development pursuant to the provisions of s 17 of the Housing SEPP and the FSR of the Proposed Development is 1.06:1, which is compliant with the FSR provisions of the Housing SEPP (see above at [(4)(c)]); 4. the Subject Site is not located in a heritage conservation area and is not a heritage item, and consistent with the provisions of cl 5.10, the Proposed Development is consistent with the provisions of this clause; 5. the Subject Site is located within a catchment identified within the Maroubra Bay Flood Study as containing a minor overland flow path which passes north to south through the Subject Site, and 1. the Applicant has provided a flood risk management report prepared by Smart Structures Australia, dated 21 March 2023, as part of the amended application; and 2. the Parties submit, and I am satisfied, that, on the basis of its flood risk management report, the Proposed Development satisfies the provisions of cl 5.21 of RLEP; 1. in response to the provisions of cl 6.1 of RLEP, the Parties advise that: 1. the Subject Site is identified as being located within a class 5 acid sulfate soils area and it is located within 500m of adjacent Class 4 land that is below 5m Australian Height Datum (AHD); but 2. based on the Applicant's report prepared by Morrow Geotechnics Pty Ltd, and dated 15 June 2023, the Parties submit, and I am satisfied, that it is not likely that the water table of the Subject Site would be lowered below 1m AHD on the adjacent Class 4 land and, accordingly, the provisions of cl 6.1 of RLEP are not enlivened; 1. the Applicant has provided a Geotechnical Investigation prepared by Morrow Geotechnics dated September 2022, along with a further geotechnical letter from Morrow Geotechnics Pty Ltd dated 16 March 2023, which confirm that matters identified within cl 6.2(3) of RLEP have been considered in relation to the Proposed Development; 2. in relation to the provisions of cl 6.4, the Applicant has provided its concept stormwater plans dated June 2022, and its flood risk management report dated 21 March 2023, both prepared by Smart Structures Australia, and the Parties submit, and I am satisfied, that these satisfy the provisions of cl 6.4 of RLEP concerning stormwater management, such that, together with the imposition of agreed Conditions 22-26, 60-61 and 82-85, the Proposed Development: 1. is designed consistent with the principles of water sensitive urban design so as to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water; 2. includes, where possible, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water; and 3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. 1. the Subject Site is located within the foreshore scenic protection area and consistent with the provisions of cl 6.7(2) of RLEP concerning foreshore scenic protection, the Parties agree, and I am satisfied, that the design of the Applicant's proposed residential flat building minimises it's impact on public areas of the coastline and would contribute to the scenic quality of the foreshore; 2. in relation to the provisions of cl 6.8 of RLEP concerning airspace operations, the Proposed Development will not penetrate the "Limitation or Operations Surface" as defined in cl 6.8(5) of RLEP and so the provisions of cl 6.8(4) of RLEP are not enlivened; 3. the provisions of cl 6.9 of RLEP are not enlivened as the Subject Site is not near the Sydney (Kingsford Smith) Airport; 4. the Subject Site is in an established urban area and the Parties advice, and I am satisfied, that the services required to be provided under the provisions of cl 6.10 of RLEP are available or that adequate arrangements have been made to make them available when required by the Proposed Development; 1. in relation to the provisions of RDCP: 1. the Parties have considered the relevant provisions of RDCP, and they agree, and I am satisfied, that: 1. the Proposed Development is compliant with the provisions of the relevant parts of RDCP; or if not, 2. the Proposed Development achieves the objectives of the controls in RDCP such that it merits flexibility in the application of the relevant controls pursuant the provisions of s 4.15(3A)(b) of the EP&A Act. 1. Having considered the advice of the Parties, provided above at [8], I agree that: 1. regard has been had to the objectives of the Subject Site's zoning in determining the Applicant's Development Application; 2. the Applicant's development application can be approved having regard to the matters in ss 4.15(1)(b)–(e) of the EP&A Act, including in relation to the submissions received in response to notification, and the single submission made during the site view, which have been considered by the Parties in reaching agreement; 3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied; and 4. approval of the Proposed Development is in the public interest. 1. Further, I am satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision. 3. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 4. The Court notes that: 1. The Respondent, Randwick City Council, as the relevant consent authority, has agreed under section 37(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA/513/2022 in accordance with the documents listed in Annexure A ('Amended Application'); and 2. The Applicant filed the Amended Application with the Court on 25 May 2023. Orders 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application No DA/513/2022 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed; 2. The appeal is upheld; 3. Development Application No DA/513/2022 for demolition of existing structures and construction of a four-storey residential flat building containing four (4) apartments over basement level car parking for eight (8) vehicles, landscaping and siteworks at 132 Marine Parade, Maroubra is determined by the grant of consent subject to the conditions of consent in Annexure A. M Chilcott Commissioner of the Court 378082.22 Annexure A (470547, 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: 23 June 2023