Land and Environment Court New South Wales Medium Neutral Citation: Stolier v Randwick City Council [2019] NSWLEC 1123 Hearing dates: Conciliation conference on 16 November 2018; 18 March 2019 Date of orders: 27 March 2019 Decision date: 27 March 2019 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [7] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Category: Principal judgment Parties: Ariel Stolier (Applicant) Randwick City Council (Respondent) Representation: Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) M Hanna, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/150385 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the refusal of its development application DA-161/2018. As amended the application seeks consent for demolition of existing structures and construction of a three storey residential flat building containing six units. The development is proposed at 14 Melody Street, Coogee (Lot 29 DP 8000). 2. 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. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 16 November 2018. Following the conciliation 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 them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons: 1. The property is zoned R3 Medium Density Residential Zone under the Randwick Local Environmental Plan 2012 (LEP 2012). Residential Flat Buildings are permitted with consent within the zone. 2. The application has been notified in accordance with the relevant development control plan and the submissions have been considered. 3. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard at cl. 4.3 of LEP 2012. The development standard establishes a maximum height of 9.5m above natural ground. The development as proposed exceeds the height standard by 0.15m at the centre of the site to accommodate the lift overrun. 4. The Applicant has filed a written request pursuant to cl. 4.6 of LEP 2012 prepared by GSA Planning, dated January 2019. This request accords with the amended plans. I have reviewed that request and in accordance with cl. 4.6(4) of LEP 2012, I am satisfied that: 1. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard. 2. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance. 3. On these basis's I am satisfied that the requirements of cl. 4.6(4)(a)(i) of LEP 2012 are met. 4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R3 Medium Density Residential Zone and the height development standard. On this basis I am satisfied that the requirements of cl. 4.6(4)(a)(ii) of LEP 2012 are met. 5. Pursuant to cl. 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. Further I am satisfied that the public benefit of maintaining that standard is not considered significant as, regardless of the noncompliance the development will appear compatible in the streetscape and raises no adverse amenity impacts. 6. On this basis I am satisfied that the requirements of cl. 4.6(4)(b) of LEP 2012 are met. 7. In accordance with State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development, a design verification statement has been provided by a registered architect (Aaron Stevens: Reg. No. 9507). 8. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. Leave is granted to the Applicant to amend Development Application No. DA 161/2018 the subject of these proceedings to rely on the following amended plans and documentation: Plan Drawn By Dated DA1001 COVERSHEET REV 4 OROSI 21/12/2018 DA1005 SITE PLAN REV 4 DA1101 BASEMENT REV 4 DA1002 GROUND FLOOR REV 4 DA1103 FIRST FLOOR REV 4 DA1104 SECOND FLOOR REV 4 DA1105 ROOF REV 4 DA2001 ELEVATION REV 4 DA2002 ELEVATION REV 4 DA3001 LONGITUDINAL SECTION REV 4 DA3002 CROSS SECTION REV 4 OROSI 21/12/2018 DA6001 SHADOW DIAGRAMS REV 4 OROSI 21/12/2018 DA6002 SHADOW DIAGRAMS REV 4 OROSI 21/12/2018 DA6003 SHADOW DIAGRAMS REV 4 OROSI 21/12/2018 DA6004 SHADOW DIAGRAMS REV 4 OROSI 21/12/2018 DA6005 SHADOW DIAGRAMS REV 4 OROSI 21/12/2018 DA6006 ELEVATIONAL SHADOW DIAGRAM FLAT ROOF REV 4 OROSI 21/12/2018 DA7001 FSR DIAGRAM REV 4 OROSI 21/12/2018 DA7041 FINISHES SCHEDULE REV 4 OROS1 21/12/2018 BASIX Certificate No. Dated 0003653960 1 March 2019 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the respondent that were thrown away as a result of amending the development application in the sum of $10,000.00 within 28 days of this agreement. 2. The applicant's written request pursuant to clause 4.6 of Randwick Local Environmental Plan 2012 seeking to justify the breach of the maximum height standard is well founded and upheld. 3. The Appeal is upheld. 4. Development Application No. DA 161/2018 for the demolition of existing structures and construction of a part 3 storey residential flat building containing six dwellings, basement car parking, containing 8 parking spaces and associated works at 14 Melody Street, Coogee is approved subject to the conditions set out in Annexure 'A' to this agreement. ………………………. D M Dickson Commissioner of the Court Annexure A ********** Amendments 01 April 2019 - Corrections to typographical errors found on Cover Sheet 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: 01 April 2019