Land and Environment Court New South Wales Medium Neutral Citation: HQME Pty Ltd v Randwick City Council [2020] NSWLEC 1185 Hearing dates: Conciliation conference on 17 April 2020 Date of orders: 22 April 2020 Decision date: 22 April 2020 Jurisdiction: Class 1 Before: Walsh C Decision: Refer to orders at [6] 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: HQME Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/21667 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the refusal of Development Application No. 30/2018 ('DA') by Randwick City Council ('Council'). The site which is the subject of the DA is legally described as Lot 30 and Lot 31 in DP 593855 and is identified as 118-120 Garden Street, Maroubra. 2. The original DA sought approval for the demolition of existing structures and construction of a 4 storey development comprising a ground floor retail premises and 3 "home offices" (with 3 mezzanines containing a bedroom at the first floor), 7 residential units, semi-basement parking, roof terraces and associated landscaped works. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act') between the parties, which was held on 17 April 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court granting leave to amend the application (to a reduced scale in accordance with amended plans), upholding the appeal and granting development consent to the application subject to conditions. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it 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 DA. The parties indicate that the decision is one that the Court can make in the proper exercise of its functions, and provided commentary on relevant jurisdictional matters to demonstrate this. I concur with the agreement of the parties, in particular, noting the following: * The application was notified in accordance with EPA Act requirements, and the submissions subsequently received have been considered, and seen by the parties as satisfactorily addressed through the agreed amendments. * Having regard to State Environmental Planning Policy No 55—Remediation of Land, and the provisions of cl 7(1), Council has considered whether the land is contaminated and taken the view that no further action is required given the site's historical use for residential purposes. I agree with Council and find that the relevant provision is satisfied. * Having regard to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development ('SEPP 65'): The application was referred to Council's Design Excellence Panel and the concerns raised by the panel have been considered. The design quality of the development has been considered (including with reference to the Apartment Design Guide) and the Applicant has filed a Design Verification Statement in accord with the requirements of cll 50(1A) and 50(1AB) of the Environmental Planning and Assessment Regulation 2000. Council is satisfied that the amended plans demonstrate that adequate regard has been given to the design quality principles under Schedule 1 of SEPP 65 of the ADG design criteria. I have considered Council's advisings and agree that the proposal before the Court now satisfies SEPP 65-related requirements. * Having regard to Randwick Local Environmental Plan 2012 (RLEP): The site is zoned B2 Local Centre pursuant to the provisions of RLEP and shop top housing is permitted with consent in the zone. With the proposed amendments to the development application the proposal satisfies the development standards in RLEP. The Respondent is satisfied that the services essential for the development are available or that adequate arrangements have been made to make them available as required by clause 6.10 of RLEP, and based on this advice I am also satisfied. In accordance with clause 6.8 of RLEP the Respondent has consulted with Sydney Airport in relation to the proposed development. No objections to the development were raised by Sydney Airport. I accept the advice of the parties that no other provisions of RLEP prevent the recommended approval. 1. On the basis of the above, 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. 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. The Court orders: 1. Leave is granted to the Applicant to rely upon the following amended plans as listed below: Plan Name Drawing number Revision Date Prepared by Architectural plans Basement Floor Plan 02 7 11/19 Derek Raithby Architecture Ground Floor Plan 03 9 12/19 Derek Raithby Architecture First, Second Floor Plans 04 13 12/19 Derek Raithby Architecture Third Floor and Roof Plans 05 12 12/19 Derek Raithby Architecture South and West Elevations 06 13 12/19 Derek Raithby Architecture North and East Elevations 07 13 12/19 Derek Raithby Architecture Sections 08 13 12/19 Derek Raithby Architecture Finishes Schedule 19 3 04/20 Derek Raithby Architecture Detailed Drawing – Shop 30 2 12/19 Derek Raithby Architecture 1. The Applicant is to pay the Respondent's costs thrown away as a result of the Applicant amending the development application as agreed or assessed. 2. The appeal is upheld. 3. Application no. DA/30/2018 for the demolition of existing structures and construction of a three storey shop top housing development comprising ground floor retail and office premises and residential accommodation for 7 units, 2 x basement car parking levels and associated landscape works is approved subject to the conditions contained in Annexure "A". ………………………….. P Walsh Commissioner of the Court Annexure A (199 KB) Plans (2.77 MB) ********** 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: 22 April 2020