Brennan v Randwick City Council

Representation: Counsel:
J Reid (Applicant)
J Corradini-Bird (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/232883

Publication restriction: No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Janet Brennan (first Applicant) and Carolyn Condon (second Applicant) against the refusal of Development Application No DA/430/2025, lodged with the Randwick City Council (the Respondent), on 6 May 2025. The respondent issued a notice of refusal on 13 June 2025.

2. The Development Application seeks Development Consent for the Torrens title subdivision of an existing dual occupancy. The proposed development is to take place at 5 Meehan Street, Matraville, NSW 2036. The land is legally described as Lot 30 in DP 245581.

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (the LEC Act). The conciliation conference commenced on 27 November 2025.

4. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the development application subject to agreed outcomes and conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

8. Pursuant to the Randwick Local Environmental Plan 2012 (RLEP 2012), the subject site is zoned R2 Low Density Residential. The proposed “subdivision” is permissible in this zone. Regard has been given to the R2 zone objectives in determining the application.

9. The proposed development contravenes the minimum subdivision lot size development standard under cl 4.1(3) of the RLEP 2012. The minimum subdivision lot size applicable to the site under clause 4.1(3) is 275m². The Torrens title subdivision, the subject of the DA, results in one lot of 275m² and one lot of 264.3m², a 3.89% or 10.7m² variation of the minimum lot size standard.

10. The Development Application, as amended, is supported by a revised cl 4.6 written request prepared by ABC Planning, dated November 2025. The written request provides a detailed assessment of cl 4.6 of the RLEP 2012 and its objectives, and whether compliance with the development standard is unreasonable or unnecessary in the circumstances of this case.

11. The parties are satisfied that the revised written cl 4.6 request has adequately addressed the following matters that are required to be demonstrated under cl 4.6 of RLEP 2012;

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case as the proposed development satisfies the objectives of the standard notwithstanding the non-compliance, and (b) that there are sufficient environmental planning grounds to justify the contravention of the development standard for the reasons set in the submitted request.

5. The parties also note that the proposed subdivision is consistent with the Council’s resolution of 23 September 2025, in which Council resolved to prepare a planning proposal to amend the RLEP 2012 to permit subdivision of existing dual occupancies on parent lots of between 450 – 550m2 that were approved prior to 1 September 2023. The existing dual occupancy was approved in May 2020, and the parent lot is between 450 – 550m2 and therefore the proposed subdivision will comply with the minimum lot size standard once the amendment is gazetted.
6. Clauses 6.4 and 6.10 of RLEP 2012, require the consent authority to consider Stormwater management and essential services to the site. The partes have considered the requirements of both these clauses and reached the view that the proposed subdivision does not alter the approved solutions for stormwater and services. I agree that the required matters have been considered.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), consideration has been given to whether the site is contaminated. The parties agree that the site has been used for residential purposes for a number of years and is therefore unlikely to be contaminated. The proposed use of the land is to remain residential. The parties agree, and I am satisfied, that the required considerations have been undertaken.

8. The proposal was notified from 12 May 2025 to 26 May 2025. No submissions were received.

9. 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’ agreement.

10. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. The Court notes that:

12. The Randwick City Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending the Development Application DA/430/2025 to rely on the following documents:

(a) Clause 4.6 Variation Request to Minimum Lot Size Development Standard pursuant to Clause 4.1 of Randwick LEP 2012, prepared by ABC Planning Pty Ltd and dated November 2025. (b) Plan of Subdivision of Lot 30 D.P. 245581 – Sheet 1 of 2 prepared by Victor John Mansell dated 14 April 2022. (c) Plan of Subdivision of Lot 30 D.P. 245581 – Sheet 2 of 2 prepared by Victor John Mansell, undated.

Orders

12. The Court orders that:

13. The appeal is upheld.

14. Development Application DA/430/2025, for the Torrens title subdivision of an existing dual occupancy into two lots, at 5 Meehan Street, Matraville, NSW, on land legally described as Lot 30 in DP 245581, is determined by the grant of consent subject to the conditions set out in Annexure A.

Stuart Harding

Acting Commissioner of the Court

**********

Annexure A (182 KB, pdf)