Cant v Randwick City Council

Category: Principal judgment

Parties: Simon Neville Cant (First Applicant)
Kellie Leanne Bright (Second Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
C Koikas (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/457132

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA/850/2024 for the demolition of the existing dwelling, removal of trees, and construction of a dwelling house with in-ground swimming pool and pool house (outbuilding) and associated ancillary and landscape works at 312 Rainbow Street, Coogee on land legally known as Lot 11, Section 1 of Deposited Plan 975250 by Randwick City Council (the Council).

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference, which I presided over, was held on 29 and 30 May 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert planning report, and the plans that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council as the consent authority consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 30 May 2025 and are listed under Condition 1 of the conditions of consent at Annexure A.

6. Significant amendments were made to the proposal during the conciliation process which gave rise to the agreement (and which resolved the Respondent’s contentions). The amendments primarily related to:

7. reduction of the first floor depth to reduce view impacts on the neighbouring property to the west;

8. reconfiguration of the first floor plan and deletion of the proposed balcony off Bedroom 3;

9. reduction of ground floor entry, stairs, and courtyards;

10. deletion of the entry portico;

11. changes to the garage, driveway, bin storage area, and fencing;

12. changes to the basement level to comply with FSR and GFA, and to allow for additional deep soil and landscape area;

13. inclusion of additional privacy treatments to the Bedroom 3 window and Bedroom 2 balcony; and

14. deletion of proposed tree plantings to reduce potential view impacts on neighbouring properties.

Jurisdictional matters

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

State Environmental Planning Policy (Sustainable Buildings) 2022

8. The proposal is BASIX development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 apply. An amended BASIX Certificate has been submitted prepared and submitted (Certificate Number 1762309S_02 dated 28 May 2025) as required by s 27 of the EPA Reg.

State Environmental Planning Policy (Resilience and Hazards) 2021

9. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies as the land is located within the ‘coastal environment area’ and ‘coastal use area’. Having regard to the proposed design and conditions of consent I am satisfied in respect of the relevant matters contained in ss 2.10 and 2.11 having regard to the assessment contained in the Statement of Environmental Effects prepared by Vaughan Milligan Development Consulting Pty Ltd, August 2024 and the visual impact assessment prepared by Urbis, April 2025).

10. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of RH SEPP. The parties agree and I have been advised that the site has a long history of residential use and therefore contamination is considered unlikely. No further investigation in accordance with the SEPP is therefore required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) in respect of vegetation in non-rural areas. The proposal seeks development consent for tree removal and is accompanied by an Arboricultural Impact Assessment Report (Martin Peacock Tree Care, 30 August 2025). As consent is sought the requirements of s 2.6 are satisfied. Further the parties agree that the proposed tree removal is acceptable subject to the proposed landscape planting.

Randwick Local Environmental Plan 2012

12. Development for the purposes of a residential dwelling is permissible in the R2 Low Density Residential zone in which the site is located pursuant to Randwick Local Environmental Plan 2012 (RLEP).

13. The development has regard to the objectives of the R2 Low Density Residential zone as required by cl 2.3 of RLEP including notably “to provide for the housing needs of the community within a low density environment”, and “to protect the amenity of residents”.

14. As required by cl 2.7 of RLEP consent is sought as part of the subject application for the proposed demolition of existing structures on site.

15. The proposed development complies with the maximum height of building development standard set out in cl 4.3 of RLEP which provides for a maximum height of 9.5m. The proposal has a maximum height of 8.73m as shown on the plans.

16. The proposed development complies with the floor space ratio development standard set out in cl 4.4A of RLEP which provides for a maximum Floor Space Ratio (FSR) of 0.65:1. The parties advise that the proposal has a floor space ratio of 0.649271:1 and that it therefore complies with the control.

17. I am satisfied on the basis of the parties’ agreement, the Geotechnical Assessment (AscentGeo, 11 July 2025) and the recommended conditions of consent (including conditions 22, 28, 29) that consideration has been given to the matters required to be considered prior to the granting of development consent to earthworks under cl 6.2 of RLEP.

18. I am also satisfied that the proposal complies with cl 6.4 in respect of stormwater management having regard to the agreement of the parties’, the stormwater management plan prepared by Northrop (22 August 2024), and the recommended conditions of consent (including conditions 11-14, 52, 53, 54 and 55).

19. The site is located within the foreshore scenic protection area to which cl 6.7 of RLEP applies. On the basis of the parties’ agreement and the visual impact assessment (Urbis, April 2025) I am satisfied that the requirements of cl 6.7(3) have been satisfied.

20. The parties’ agree, and I concur, that all relevant essential services are available to the site, which is currently developed for the purposes of a residential dwelling house, in accordance with the requirements of cl 6.10.

Other Matters

21. The development application is made by the owners of the site in accordance with s 23 of the EPA Reg.

22. The Respondent notified the original development application between 18 September and 2 October 2024. Twenty seven (27) submissions were received in respect to the subject application. I was also addressed at the commencement of the conciliation on site by six (6) submitters. The parties advised that the matters raised in submissions were considered in reaching the subject agreement. In this regard I note that substantial amendments were made to the proposal to address the primary issue of view impact raised in submissions.

Conclusion

23. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

24. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

25. The orders of the Court are:

26. The appeal is upheld.

27. Development Application No. DA/850/2024 as amended for the demolition of existing dwelling, removal of trees and construction of a dwelling house with in-ground swimming pool and pool house (outbuilding) and associated ancillary and landscape works on land known as 312 Rainbow Street, Coogee (Lot 11, Section 1 in Deposited Plan 975250) is determined by the grant of consent, subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

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Annexure A.566 KB.pdf