Land and Environment Court New South Wales Medium Neutral Citation: Adabjou v Randwick City Council [2019] NSWLEC 1343 Hearing dates: Conciliation conference on 19 July 2019 Date of orders: 24 July 2019 Decision date: 24 July 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [9] below Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Sasan Adabjou (Applicant) Randwick City Council (Respondent) Representation: Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent) File Number(s): 2018/219035 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Randwick City Council's deemed refusal of development application 277/2018 ('DA'). 2. The DA which is the subject of these proceedings, subsequent to amendments for which leave has been granted, is for demolition of existing structures, construction of a 3 storey residential flat building containing 6 apartments (5 x 2-bedroom apartment, 1 x 3-bedroom apartments) over basement car parking for 9 cars (including 6 x in a stacked arrangement and 1 x visitor space) and 2 motorcycles and associated landscaping. The land to which the development application relates is 30 Beach Street, Coogee. Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 19 July 2019. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 2. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 3. 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. 4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in a note accompanying the s34 agreement. The note explained how jurisdictional matters have been or could be satisfied. In regard to jurisdiction, I note the following: * The development application was made with the written consent of landowners. * The development is permissible within the applicable Zone R3 Medium Density Residential zone of Randwick Local Environmental Plan 2012 ('LEP'). * The development does not contravene any development standard in the LEP or other applicable environmental planning instrument. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given the long-term use of the site for residential purposes, Council indicates the site is not likely to be contaminated. I am satisfied that due practical consideration has been given to the question of contamination and it has not been found that the site is contaminated. I am satisfied in regard to the relevant requirements. * In accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000, the development application was accompanied by BASIX Certificates in respect of the proposed development. * Consideration has been given as to the matters specified in cl 6.2(3) of the LEP relating to development involving ancillary earthworks and the proposed development is considered acceptable in relation to those matters having regard to the findings of the following reports: * Geotechnical Investigation Report prepared by Morrow Geotechnics Pty Ltd dated 27 February 2018; and * Shoring Design Report for Residential Development – 30 Beach Street, Coogee dated 6 March 2019. * Having regard to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) adequate regard has been given to: (a) the design quality principles; and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. I also note the Applicant's architect has prepared an updated design verification statement in satisfaction of cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000. * I have been provided with an explanation on how consideration has been given to public submissions. 1. I have relevantly affirmed the advice of the parties with respect to the above and 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. 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. 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. I note that I have had no direct regard to the merits of the application in coming to this position. 3. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans: DWG NO. DESCRIPTION PREPARED BY REV DATE A101 Cover Sheet eK Design Studio 7 06/06/2019 A102 Locality Plan eK Design Studio 7 06/06/2019 A103 Site Analysis Plan eK Design Studio 7 06/06/2019 A104 Basement & Ground – Floor Plan eK Design Studio 9 06/06/2019 A105 Level 1 & 2 – Floor Plan eK Design Studio 8 06/06/2019 A106 Roof Plan eK Design Studio 8 06/06/2019 A109 North & South Elevation eK Design Studio 8 06/06/2019 A110 East & West Elevation eK Design Studio 8 06/06/2019 A111 Sections eK Design Studio 8 06/06/2019 A111.1 Sections 2 eK Design Studio 2 06/06/2019 A112 Shadow Diagram eK Design Studio 6 06/06/2019 A113 Shadow Diagram eK Design Studio 6 06/06/2019 A115 Proposed Building Envelope eK Design Studio 6 06/06/2019 A116 SEPP Diagrams – Solar Access eK Design Studio 7 06/06/2019 A117 SEPP Diagrams – Cross Ventilation eK Design Studio 6 06/06/2019 A118 GFA Diagrams eK Design Studio 7 06/06/2019 A119 Survey Plan eK Design Studio 6 06/06/2019 A120 Building Height Diagrams eK Design Studio 6 06/06/2019 A121 Materials Sample Board eK Design Studio 5 06/06/2019 A122 Demolition Plan eK Design Studio 5 06/06/2019 A123 3D Views eK Design Studio 5 06/06/2019 A124 3D Views eK Design Studio 5 06/06/2019 A127 Detail Sections eK Design Studio 5 06/06/2019 A128 Detail Sections eK Design Studio 5 06/06/2019 A129 Detail Sections eK Design Studio 5 06/06/2019 A135 Deep Soil Calculation eK Design Studio 3 06/06/2019 A136 Shadow Diagram – Section eK Design Studio 3 06/06/2019 A139 9.5m Height Plane Diagram eK Design Studio 3 06/06/2019 DESCRIPTION PREPARED BY REV DATE Design Verification Report Eshan Khoshsima July 2019 BASIX Certificate No. 913913M_02 Frys Energywise 9 July 2019 1. The Applicant is to pay the Respondent's costs 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. 277/2018 for the demolition of existing structures and construction of a 3 storey residential flat building containing 6 apartments (1 x 3 bedroom and 5 x 2 bedroom) over basement parking for 9 cars (including 6x in a stacked arrangement and 1x visitor space) and 2 motorcycles and associated landscaping on the land at 30 Beach Street, Coogee is approved, subject to the conditions set out in Annexure "A". …………………………… P Walsh Commissioner of the Court Annexure A (439 KB, pdf) Plans (8.39 MB, pdf) ********** Amendments 30 July 2019 - Plans uploaded 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: 30 July 2019