Fong v Randwick City Council

Category: Principal judgment

Parties: Yin Ting Fong (First Applicant)
Justin Elazzi (Second Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2025/49783

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application DA/875/2024 (DA), for demolition of existing structures and construction of two 2-storey semi-detached dwellings with basement level, two swimming pools at the rear, new retaining walls and front fencing, and associated ancillary and landscaping works at 36 Kyogle Street, Maroubra NSW 2035 legally known as Lot 4487 DP 752015 (subject site).

2. The subject site is a rectangular parcel of land close to the intersection with Fitzgerald Avenue. On the subject site there is an existing detached single storey brick dwelling with a pitched tile roof. The surrounding area comprises a mix of low and medium density dwellings, including single and semi-detached dwellings.

3. The DA was lodged with Randwick City Council on 17 September 2024, and notified between 23 September and 8 October 2024; no public submissions were received.

4. The Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 7 February 2025.

5. The DA was determined by refusal on 11 February 2025.

6. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 22 July 2025. I presided over the conciliation conference, commencing with an onsite view. Following the conciliation conference, on the basis of amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

7. A signed agreement was submitted to the Court on 22 July 2025, in accordance with s 34(10) of the LEC Act.

8. Generally, the agreement approves the development subject to amended plans and supporting documents that were prepared by the Applicant, along with the agreed conditions of consent annexed to the s 34 agreement.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

10. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

11. I formed an opinion of satisfaction, based on the evidence and the submissions of the parties, that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional matters

Owner’s consent

12. The DA was made with the consent of the owner of the subject site in compliance with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

Planning Framework

Randwick Local Environmental Plan 2012

13. Randwick Local Environmental Plan 2012 (RLEP) applies to the subject site, which is within the Randwick Local Government Area (RLEP, cl 1.3).

14. The subject site is located within the R2 Low Density Residential zone. Development for the purposes of ‘semi-detached dwellings’ is permissible with consent in the R2 Low Density Residential zone. Pursuant to cl 2.3 of the RLEP, regard has been had to the relevant objectives of the zone. The proposal is consistent with these objectives, which are:

15. To provide for the housing needs of the community within a low density residential environment.

16. To enable other land uses that provide facilities or services to meet the day to day needs of residents.

17. To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

18. To protect the amenity of residents.

19. To encourage housing affordability.

20. To enable small-scale business uses in existing commercial buildings.

21. The parties agree, and I am satisfied, that the development seeks consent for demolition in accordance with cl 2.7 of RLEP.

22. The parties agree and I am satisfied that the proposed Torrens Title subdivision of the subject site complies with the minimum lot size development standard set out in cl 4.1 of RLEP.

23. The proposal is within the height standard at cl 4.3 of RLEP. The maximum building height is 9.5 m; the parties agree, and I am satisfied that the proposed development does not exceed 9.5m in height (indicated on architectural plan 10 revision G, In Haus Designs, dated 18 July 2025).

24. The proposal complies with the maximum floor space ratio (FSR) prescribed at cl 4.4A of RLEP. The subject site has a maximum permissible FSR of 0.6:1, permitting a total gross floor area of 441.47 m2. The proposed development seeks an FSR of 441.36 m2 (indicated on architectural plan 01 revision G, In Haus Designs, dated 18 July 2025).

25. Under cl 5.21 (Flood Planning) of the RLEP, the subject site is located within the Flood Planning Area. Having considered the matters set out in cl 5.21(3), the parties agree and I am satisfied that the development is consistent with the requirements of 5.21(2).

26. The subject site is identified as being in an area of Class 5 Acid Sulfate Soils (ASS) on the Acid Sulfate Soils Map at cl 6.1 of the RLEP. I accept the advice of the parties that, as the subject works are not within 500 metres of adjacent Class 1, 2, 3, or 4 land that is below 5m Australian Height Datum (AHD), and by which the watertable is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land, an Acid Sulfate Soils management plan is not required, and that the proposed development is consistent with cl 6.1 of the RLEP.

27. Clause 6.2 (Earthworks) of the RLEP applies to the subject site. The Geotechnical Investigation Report (prepared by ESWNMAN, dated 16 September 2024), along with the conditions of consent including conditions 11, 12, and 28, address and satisfy the matters to be considered at cl 6.2(3).

28. Clause 6.4 (Stormwater Management) of the RLEP applies to the subject site. The parties agree, and I am satisfied that the stormwater engineering plans prepared by GEBA Consulting, dated 6 September 2024, and condition 16 and 17 (Stormwater Drainage) of the conditions of consent confirm that the development will integrate measures to avoid and mitigate adverse impacts of stormwater runoff and meets the objectives of cl 6.4(3).

29. I am satisfied that the services essential for the development are available, as set out in cl 6.10 (Essential Services) of the RLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. Pursuant to Ch 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the parties agree and I am satisfied that the development will not result in the clearing of any vegetation except that authorised by the consent, and that the development does not involve the removal of any significant or protected vegetation on the subject site.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. On the basis that the subject site has been used for residential purposes for a substantial period of time, with no known records of contaminating activity being conducted on the subject site, I accept that the subject site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (Sustainable Buildings) 2022

26. The proposed development is a BASIX development as defined in s 27 of the EPA Reg. The development application was accompanied by a BASIX certificate (certificate number 1761654M dated 27 August 2024); a new BASIX certificate for the amended development was issued on 9 July 2025 (certificate no. 1761654M_02).

27. On the basis that an embodied energy report forms part of the BASIX certificate, I am satisfied that the embodied emissions attributable to the development have been quantified in accordance with s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

Conclusion

28. I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

29. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

30. In making the orders to give effect to the agreement between the parties, I was not required to, and have not made any merit assessment of the issues that were originally in dispute between the parties.

31. The Court notes that:

32. The Respondent, Randwick City Council, as the relevant consent authority, approves pursuant to s 38(1) of the EPA Regulation the Applicant amending development application No. DA/875/2024 in accordance with the documents listed below:

| Drawing | Drawn by | Dated | | Site Plan INHAUS-02 Rev G | INHAUS Designs | 18/07/2025 | | Basement Floor Plan INHAUS-03 Rev G | INHAUS Designs | 18/07/2025 | | Ground Floor Plan INHAUS-04 Rev G | INHAUS Designs | 18/07/2025 | | Pool Sections/Backyard Plan INHAUS-05 Rev G | INHAUS Designs | 18/07/2025 | | First Floor Plan INHAUS-06 Rev G | INHAUS Designs | 18/07/2025 | | Roof Plan INHAUS-07 Rev G | INHAUS Designs | 18/07/2025 | | Elevations INHAUS-08 Rev G | INHAUS Designs | 18/07/2025 | | Elevations INHAUS-09 Rev G | INHAUS Designs | 18/07/2025 | | Sections INHAUS-10 Rev G | INHAUS Designs | 18/07/2025 | | Window/Door Schedule INHAUS-11 Rev G | INHAUS Designs | 18/07/2025 | | Wall Schedule/Fence INHAUS-12 Rev G | INHAUS Designs | 18/07/2025 | | Subdivision Plan INHAUS-14 Rev G | INHAUS Designs | 18/07/2025 | | Demolition Plan INHAUS-18 Rev G | INHAUS Designs | 18/07/2025 | | Parking Plan/Driveway Profile INHAUS-19 Rev G | INHAUS Designs | 18/07/2025 | | Schedule of Colours and Finishes INHAUS-21 Rev G | INHAUS Designs | 18/07/2025 |

| BASIX | Dated | | 1761654M_02 | 9/07/2025 |

Orders

32. The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. DA/875/2024, for demolition of existing structures and construction of two x 2-storey semi-detached dwellings with basement level, two swimming pools at the rear, new retaining walls and front fencing, associated ancillary and landscaping works at 36 Kyogle Street, Maroubra NSW 2035 legally known as Lot 4487 DP 752015, is determined by grant of consent, subject to the conditions of consent set out in Annexure A.

N Macken

Acting Commissioner of the Court

Annexure A (459 KB, pdf)

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