58 Bream Street Pty Ltd v Randwick City Council - [2024] NSWLEC 1155 - NSWLEC 2024 case summary — Zoe

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58 Bream Street Pty Ltd v Randwick City Council

[2024] NSWLEC 1155

Land and Environment Court (NSW)|2024-03-13

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-03-13

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

Judgment

COMMISSIONER: This appeal concerns an application to modify a development consent for the demolition of existing structures and construction of a four storey residential flat building comprising three units, basement car parking, and associated landscape works at Lot 2 on DP220244, also known as 58 Bream Street, Coogee (the site). The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), following the deemed refusal of Modification Application No. 150/2022/A (MOD A) by Randwick City Council (the Respondent). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [21] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
On 25 October 2022, the Land and Environment Court granted consent to Development Application DA/150/2022 within proceedings Attena Group Pty Ltd v Randwick City Council [2002] NSWLEC 1586 for the demolition of existing structures and construction of a residential flat building comprising three units, basement car parking, landscaping and associated works at 58 Bream Street, Coogee (Original DA).
MOD A was lodged on 18 July 2022 as a section 4.56 application under the EPA Act to the court-approved development, seeking a modification to the approved residential flat building for a rear extension, floorplan reconfiguration, conversion of planter areas to balconies, and an additional bedroom to ground floor Unit 1.
The Court arranged a conciliation conference for the current Modification application under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 January, 14 and 28 February, 8 and 13 March 2024, commencing with an on-site view. I presided over the conciliation conference. There was one submission to the modification application. The submitter did not attend the on-site view.

[9]

Randwick Local Environmental Plan 2012

The Randwick Local Environmental Plan 2012 (the LEP) is the relevant local environmental planning instrument that applies to the site; and 1. The site is zoned R3 Medium Density Residential pursuant cl 2.2 of the Randwick LEP. Accordingly, residential flat buildings are permissible in the zone; 2. Pursuant to cl 4.3 of the LEP, a maximum building height of 12m applies to the site. MOD A (as amended) retains the same maximum height as approved in Development Consent 150/2022 and complies with this development standard; 3. Pursuant to cl 4.4 of the LEP a maximum floor space ratio (FSR) of 0.9:1 applies to the site. Development Consent 150/2022 approved an FSR of 0.88:1 being 285sqm. MOD A (as amended) seeks an FSR of 0.96:1 or a GFA of 310.8sqm constituting a breach of the development standard by 20.65sqm; and 1. The parties submit that a cl 4.6 request for variation of the development standard is not required in this matter; 2. Consistent with the decision of the Court in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 (at [31]), I accept that the power in s 4.55(2) of the EPA Act is sufficiently broad to allow the grant of a modification application that breaches a development standard, and cl 4.6 of the LEP does not apply to modification applications. 1. Clause 5.10(4) of the LEP relates to Heritage significance; and 1. The parties submit that the site is not a heritage item, is not proximate to any heritage items and is not in a Heritage Conservation Area under the LEP; 1. Clause 6.1 of the LEP relates to Acid Sulfate Soils. The site is within a Class 5 area as marked on the LEP maps; and 1. The parties submit that the original consent dealt with acid sulfate soil and it was determined that there was no need for an acid sulfate soil management plan; 1. Clause 6.2 of the LEP relates to Earthworks; and 1. The parties advise that the application does not seek any additional earthworks. All relevant matters for consideration in this clause were considered as part of the original consent; 1. Clause 6.4 of the LEP deals with Stormwater; and 1. The parties submit that the amended MOD A does not result in any changes to the original stormwater considerations on the site, and on this basis the Court can be satisfied that the requirements at cl 6.4 continue to be achieved; 1. Clause 6.7 of the LEP deals with Foreshore scenic protection area provisions; and 1. The parties submit that the amended MOD A has addressed the requirements of clause 6.7(3) by reducing the amount of additional bulk of the proposed development and reducing the view of same both to and from the coast and beach; 1. Clause 6.10 of the LEP relates to essential services; and 1. The parties advise that site has been used for residential purposes for many years and that the Court can be satisfied that the relevant provisions in the LEP have been satisfied.

[11]

Conclusion and orders

As the parties' decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the amended Modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.
The Court notes that: 1. Randwick City Council, as the relevant consent authority, has agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification application DA/150/2022/A in accordance with the amended architectural plans and documents below, except where amended by other conditions of this consent: Plan Drawn by Dated A102 - Site Plan (Revision 4) Attena Group Design & Build 09/02/2024 A103 - Basement Plan (Revision 5 Attena Group Design & Build 23/02/2024 A104 - Ground Level (Revision 5) Attena Group Design & Build 23/02/2024 A105 - Level 1 (Revision 5) Attena Group Design & Build 23/02/2024 A106 - Level 2 (Revision 5) Attena Group Design & Build 23/02/2024 A107 - Level 3 (Revision 5) Attena Group Design & Build 23/02/2024 A108 - Roof (Revision 5) Attena Group Design & Build 23/02/2024 A108a - Roof - Overlaid survey Attena Group Design & Build 09/02/2024 (Revision 4) A109 - Section 1 (Privacy assessment) Attena Group Design & Build 09/02/2024 (Revision 4) A110 - Section 2 & 3 (Revision 4) Attena Group Design & Build 09/02/2024 A110a - Section 4 (Privacy assessment) (Revision 4) Attena Group Design & Build 09/02/2024 A110b - Section 5 Attena Group Design & Build 09/02/2024 (Revision 4) A110c - Detailed Section Attena Group Design & Build 09/02/2024 (Revision 4) A111 - North & South Elevation Attena Group Design & Build 23/02/2024 (Revision 5) A112 - East Elevation (Revision 4) Attena Group Design & Build 09/02/2024 A113 - West Elevation (Revision 4) Attena Group Design & Build 09/02/2024 A130 Window schedule (Revision 5) Attena Group Design & Build 23/02/2024 A131 Schedule of colours and finishes Attena Group Design & Build 09/02/2024 (Revision 4)

[21]

(1) The site is zoned R3 Medium Density Residential pursuant cl 2.2 of the Randwick LEP. Accordingly, residential flat buildings are permissible in the zone;

(2) Pursuant to cl 4.3 of the LEP, a maximum building height of 12m applies to the site. MOD A (as amended) retains the same maximum height as approved in Development Consent 150/2022 and complies with this development standard;

(3) Pursuant to cl 4.4 of the LEP a maximum floor space ratio (FSR) of 0.9:1 applies to the site. Development Consent 150/2022 approved an FSR of 0.88:1 being 285sqm. MOD A (as amended) seeks an FSR of 0.96:1 or a GFA of 310.8sqm constituting a breach of the development standard by 20.65sqm; and

(a) The parties submit that a cl 4.6 request for variation of the development standard is not required in this matter;

(b) Consistent with the decision of the Court in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 (at [31]), I accept that the power in s 4.55(2) of the EPA Act is sufficiently broad to allow the grant of a modification application that breaches a development standard, and cl 4.6 of the LEP does not apply to modification applications.

(4) Clause 5.10(4) of the LEP relates to Heritage significance; and

(a) The parties submit that the site is not a heritage item, is not proximate to any heritage items and is not in a Heritage Conservation Area under the LEP;

(5) Clause 6.1 of the LEP relates to Acid Sulfate Soils. The site is within a Class 5 area as marked on the LEP maps; and

(a) The parties submit that the original consent dealt with acid sulfate soil and it was determined that there was no need for an acid sulfate soil management plan;

(6) Clause 6.2 of the LEP relates to Earthworks; and

(a) The parties advise that the application does not seek any additional earthworks. All relevant matters for consideration in this clause were considered as part of the original consent;

(7) Clause 6.4 of the LEP deals with Stormwater; and

(a) The parties submit that the amended MOD A does not result in any changes to the original stormwater considerations on the site, and on this basis the Court can be satisfied that the requirements at cl 6.4 continue to be achieved;

(8) Clause 6.7 of the LEP deals with Foreshore scenic protection area provisions; and

(a) The parties submit that the amended MOD A has addressed the requirements of clause 6.7(3) by reducing the amount of additional bulk of the proposed development and reducing the view of same both to and from the coast and beach;

(9) Clause 6.10 of the LEP relates to essential services; and

(a) The parties advise that site has been used for residential purposes for many years and that the Court can be satisfied that the relevant provisions in the LEP have been satisfied.

58 Bream Street Pty Ltd v Randwick City Council

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