Land and Environment Court New South Wales Medium Neutral Citation: Leroma Pty Ltd v Randwick City Council [2019] NSWLEC 1590 Hearing dates: Conciliation conference on 13 November 2019 Date of orders: 02 December 2019 Decision date: 02 December 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) Leave is granted to the Applicant to rely on the architectural plans (Issue O) prepared by Archispectrum dated 30 August 2019. (2) The appeal is upheld. (3) Modification Application DA/13/2017A seeking to modify Development Consent DA/13/2017 (as approved by the Court on 15 March 2018) is approved subject to the conditions in Annexure "A". Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009 Category: Principal judgment Parties: Leroma Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: S Carrington (Solicitor) (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2019/125588 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings arise following Randwick City Council's deemed refusal of an application made pursuant to s 4.56 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify an approved residential flat building comprising 15 apartments with basement parking at 43-45 Dudley Street, Coogee (site). 2. The original consent DA/13/2017/A was granted by the Court on 20 February 2018 in Proceedings No. 2017/95359 (original consent). Noting, the development includes an affordable housing component in accordance with the provision of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP). 3. The applicant now seeks approval to make the following amendments: "10. The amendments proposed by the Modification Application are shown on the Revised Modification Drawings and primarily comprise the following: 10.1 Addition of one bedroom to Unit 1 (Ground Floor) and Unit 11 (Third Floor), both becoming two-bedroom units; 10.2 Additional floor area to Units 11, 12 and 13 (Third Floor); 10.3 Reconfiguration of Unit 12 from two-bedroom to three-bedroom unit; 10.4 Reconfiguration of Unit 13 from two-bedroom only to also include a study 10.5 Internal reconfiguration of Unit 4 (Ground Floor); 10.6 Changes to entry doors (First Floor) Unit 5 and Unit 9; 10.7 Internal changes to Units 13 and 14; 10.8 Reconfiguration of third floor layout with changes to balconies and lift over run; 10.9 Extension of Unit 1 (Ground Floor) living room to the north; and 10.10 Extension of Unit 3 (Ground Floor) living room to the north." 1. The Court first arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 6 August 2019 before Commissioner Smithson. This conference did not resolve the appeal however; after it was terminated, the parties continued to negotiate and have now filed a s34 Agreement dated 8 November 2019. 2. The matter came before me as the Duty Commissioner on 13 November 2019, again under s 34 of the LEC Act. At that time, the parties explained how the jurisdictional issues have been resolved and provided me with a Statement of Reasons dated October 2019 prepared by Mr Betros, the applicant's consultant planner, addressing the amendments and how they have resolved the Council's and objectors' concerns. His evidence is that the approved development, as modified, will continue to satisfy all relevant aims of the Randwick Local Environmental Plan 2012 (RLEP 2012) and the objectives of the R3 Medium Density zone. It will retain the same number of units (15) and car parking spaces (19). It will also remain compliant with the building height controls in cl 4.3 and the applicable FSR controls in cl 4.4 of the RLEP 2012, albeit with the approved bonus increased floor area of 20m2. 3. Mr Betros said when addressing cl 16A of the SEPP that he believes that the design of the modified development will continue to be compatible with the character of the local area because the development will not be significantly altered in appearance or impact beyond that approved. The additional bedroom on the western side is located at ground level and below the outlook from two western neighbouring flat buildings. The setbacks retain solar access and privacy to both side neighbours. Privacy is also maintained to the eastern neighbours through the provision of privacy screen in the amended plans to the eastern side of the balcony to Unit 12. The modified development will remain subservient in height, bulk and scale to the adjoining flat development to the west and will also remain compatible with the existing flat building to the east at 45-47 Dudley Street and that approved to the north east at 16 Asher Street. Mr Betros also expressed the view that the approved and proposed photomontages confirm the negligible visual impact of the development as viewed from the public domain. In that regard, he confirmed that the modification to the rear/northern elevation as it presents to Havelock Avenue are minor and will be largely inconsequential given the lack of access/visibility from the north, noting that there is no pedestrian access along Havelock Avenue and there are no dwellings which are oriented south towards the site from the northern neighbours. In this regard, he confirmed that the primary northern neighbour across Havelock Avenue is the childcare outdoor play area. 4. Overall, his expert assessment is that the modifications to the units generally improve the amenity of the approved units whilst having no unreasonable or discernible streetscape, visual or amenity impact to surrounding properties. Mr Betros' evidence was not contradicted and relied upon by the Council in support of the proposed terms of the s34 agreement. On that basis, the Council is satisfied that the objectors' concerns in response to notification of the application (including those who addressed the earlier s34 conference at the site or from their property) have been appropriately addressed. For those reasons, the parties collectively submit that the development, as proposed to be modified, will be substantially the same as the development for which consent was originally granted. 5. The architect has prepared and submitted a verification statement in respect of the modified application as required by cl 115 of the Environmental Planning and Assessment Regulations 2000 and the modified application has been notified in accordance with the requirement of s 4.56 of the EPA Act and the Council DCP. A revised BASIX certificate has also been provided to the Court. 6. Following a consideration of the development as originally approved and the development as modified, I am satisfied as required by s 4.56(1)(a) of the EPA Act that the modified development is substantially the same for the reasons stated above, and based on Mr Betros' uncontradicted evidence. I am also satisfied that the relevant requirements under s 4.56(1) and (1A) of the EPA Act have been satisfied. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the modifications sought. The jurisdictional prerequisites in s 4.56 in this case, in my opinion, have been satisfied by this amended application. 8. Therefore, 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. 9. The Court orders: 1. Leave is granted to the Applicant to rely on the architectural plans (Issue O) prepared by Archispectrum dated 30 August 2019. 2. The appeal is upheld. 3. Modification Application DA/13/2017A seeking to modify Development Consent DA/13/2017 (as approved by the Court on 15 March 2018) is approved subject to the conditions in Annexure "A". ……………………………… S Dixon Senior Commissioner of the Court Annexure A (233 KB, 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: 02 December 2019