Gandevia v Randwick City Council

Category: Principal judgment

Parties: Edward Ian Cameron Gandevia (Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
J Lazarus SC (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Hartley Solicitors (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/108851

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 (NSW) (EPA Act) against the refusal of Development Application No DA/1136/2024 for the demolition of the existing dwelling and construction of a new dwelling house and new swimming pool on land known as 343 Rainbow Street, Coogee (Lot B in Deposited Plan 320755) 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 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 19 August 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 19 August 2025 and are listed under Condition 1 of the conditions of consent at Annexure A.

6. Amendments were made to the proposal during the joint expert conferencing and conciliation processes which gave rise to the agreement (and which resolved the Respondent’s contentions). The amendments primarily related to:

7. Reduction in the height of the building via a reduction in floor to floor heights to ensure compliance with the maximum height limit

8. Increase in deep soil area through the removal of a planter adjacent to the eastern boundary, reduction in the mezzanine store area, increase in the planter adjacent to the site frontage and provision of permeable gravel paths

9. Inclusion of screens on the eastern, western and southern elevations to address privacy concerns

10. Change to the driveway levels, and

11. Clarification of the materiality of the proposed glass balustrades in the front setback to minimise any potential view impacts.

12. In addition, additional clarification was provided such that the parties now agree the proposal complies with the maximum FSR applicable and no clause 4.6 variation request is required.

Jurisdictional matters

8. 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.

Randwick Local Environmental Plan 2012

9. 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).

10. 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”.

11. 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.

12. 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 9.49m as shown on the plans.

13. The proposed floor space ratio development standard set out in cl 4.4A of RLEP provides for a maximum Floor Space Ratio (FSR) of 0.65:1 on the subject site. The parties advise that the proposal has a floor space ratio of 0.64:1 and that it therefore complies with the control.

14. I am satisfied on the basis of the parties’ agreement, the Geotechnical Assessment (JK Geotechnics, 9 May 2024), further letter by JK Geotechnics dated 22 July 2025 and the recommended conditions of consent 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.

15. 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 plans prepared by Stellen Consulting, 16 October 2024, and the recommended conditions of consent.

16. 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 assessment contained in the Statement of Environmental Effects (ABC Planning, November 2024) I am satisfied that the requirements of cl 6.7(3) have been satisfied.

17. The parties agree, and I accept, that all relevant essential services are available to the site, which currently accommodates an existing dwelling house, in accordance with the requirements of cl 6.10.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use and therefore contamination is considered unlikely. No further investigation in accordance with the RH SEPP is therefore required.

State Environmental Planning Policy (Sustainable Buildings) 2022

19. 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 (SB SEPP) apply. A BASIX Certificate prepared by Greenperch Pty Ltd was submitted with the subject application (Certificate Number 1767603S_02, dated 5 October 2024) as required by s 27 of the EPA Reg. The parties agree this certificate does not need to be updated given the minor changes to the proposed plans. Further, the embodied emissions of the proposal have been quantified in accordance with s 2.1(5) of the SB SEPP.

Other Matters

20. The development application is made with the consent of the owner of the site in accordance with s 23 of the EPA Reg.

21. The Respondent notified the original development application from 29 November 2024 for a period of 14 days. Three submissions by way of objection were received in respect to the subject application. I was also addressed at the commencement of the conciliation on site by two submitters on behalf of the neighbours. The parties advised that the matters raised by the submittors were considered in reaching the subject agreement. In this regard I note that amendments were made to the proposal to address the height and FSR non-compliances and to minimise the potential for view impacts across the front setback looking east.

Conclusion

22. 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)).

23. 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

24. The orders of the Court are:

25. The appeal is upheld.

26. Development Application No DA/1136/2024 as amended for the demolition of the existing dwelling, construction of a new dwelling house and new swimming pool on land known as 343 Rainbow Street, Coogee (Lot B in Deposited Plan 320755) is determined by the grant of consent, subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A(405 KB, pdf)

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