COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 150/2022 (the DA) by Randwick City Council (the Respondent). The DA sought consent for demolition of existing structures, construction of a four storey residential flat building comprising three units, basement parking for four vehicles, two bicycle spaces and associated landscape works at 58 Bream Street, Coogee (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 August, 13, 27 and 30 September 2022. I presided over the conciliation conference.
Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published in February 2022, the matter commenced with a site view (on 25 August 2022) before resuming on the morning of 26 August 2022 by Microsoft Teams.
During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
Of particular note, the DA has been amended during the conciliation conference so as to resolve the contentions initially raised by the Respondent, which in turn related to issues of exceedance of the relevant floor space ratio (FSR), inappropriate building and streetscape character, excessive wall height, excessive bulk and scale, impaired design quality, and visual privacy and overshadowing impacts, amongst other contentions.
The design amendments include changes to reduce the bulk and scale of the building, accompanied by a resultant reduction in the FSR, improved privacy measures mitigating against cross viewing between neighbouring dwellings, and a revised roof form that is compatible with the desired future character of the area. Additionally, further survey information was prepared to demonstrate the proposal created no height of building non-compliance.
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 amended DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
The original DA was publicly notified from 31 March to 14 April 2022. Fifteen submissions were received by the Respondent, which raised concerns including excessive building bulk, scale and height, incompatible streetscape character, privacy impacts, overshadowing of private open space, view loss, tree loss, traffic and parking congestion, the cumulative impacts of development and renewal, and potential geotechnical impacts.
At the site view on 25 August 2022, one resident objector addressed the Court emphasising particular concerns for visual privacy, potential overshadowing of roof-mounted photovoltaic panels and overshadowing of private open space.
The parties agree that the amended DA satisfactorily resolves the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.
The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential, and the proposed development - characterised as residential flat building - is permissible with consent.
The parties agree, and I am satisfied, that all principal development standards of the RLEP have been met by the DA.
The parties agree, and I am satisfied, that pursuant to cl 5.21 of the RLEP, Flood planning, the site is not identified within a flood planning area and consequently cl 5.21 is not enlivened by the amended DA.
The parties agree, and I am satisfied, that pursuant to cl 6.1 of the RLEP, Acid sulfate soils, the site is mapped within a Class 5 Acid Sulfate Soils area. However, the DA involves earthworks which are unlikely to lower the water table at Class 1-4 land within 500m of the subject site below 5m Australian Height Datum. Accordingly, the parties agree, and I am satisfied, that an Acid Sulfate Soils Management Plan is not required.
The parties agree, and I am satisfied, that pursuant to cl 6.2 of the RLEP, Earthworks, the Applicant has provided a Geotechnical Report prepared by Morrow Geotechnics Pty Ltd and dated 7 February 2022. This report concludes that proposed earthworks and excavation will not have a detrimental impact on the soil stability or the amenity of neighbouring dwellings. The proposed extent of excavation is constrained by the size of the site and set back from adjoining properties. Agreed conditions of consent reflecting the report's recommendations are imposed to mitigate against any potential impacts of earthworks.
The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.4 of the RLEP, Stormwater management. The Applicant has provided stormwater plans (prepared by Smart Structures Australia dated February 2022) addressing the matters for consideration set out in cl 6.4(3). Conditions of consent have been imposed to ensure implementation of the plans.
The parties agree, and I am satisfied, that pursuant to cl 6.7 of the RLEP, Foreshore scenic protection area, the site is situated within the foreshore scenic protection area. This clause requires the consent authority to be satisfied the proposal is located and designed to minimise its visual impact on public areas of the coastline and contributes to the scenic quality of the coastal foreshore. I am satisfied that, by reducing the bulk and scale of the amended DA, it has the effect of reducing the proposal's visibility from the foreshore.
The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.10 of the RLEP, Essential services. The site is currently serviced for residential use and appropriate services exist for the purposes of the amended DA.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree the site has historically been used for residential purposes not associated with contamination. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. Accordingly, I am satisfied the amended DA addresses the matters outlined in cl 4.6 of SEPP Resilience and Hazards.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX certificate (dated 20 September 2022) has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.
For the elimination of doubt, I am satisfied, that the amended DA, despite its characterisation as a residential flat building, is not subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development as a consequence of it comprising fewer than four dwellings.
Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
The Court notes that:
1. Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the agreement of the Respondent.
2. The amended DA documents were uploaded to the NSW Planning Portal on 27 September 2022.
3. The Applicant has filed the amended DA with the Court on 30 September 2022.
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Orders
The Court orders that:
1. Leave is granted to the Applicant to amend Development Application DA 150/2022 and rely upon amended plans and documents referred to in condition 1 at Annexure A.
2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $4,000.
3. The appeal is upheld.
4. Consent is granted to Development Application DA 150/2022 (as amended) 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, subject to the conditions contained at Annexure A.
[3]
Acting Commissioner of the Court
156228.22 Annexure A (399267, pdf)
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Decision last updated: 25 October 2022