Gharebpour v Randwick City Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Randwick City Council, Coogee Bay Flood Study, April 2013

Category: Principal judgment

Parties: Zack Gharebpour (Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/439250

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the deemed refusal of DA/932/2024. The Development Application seeks consent for the demolition of the existing structures and construction of a four-storey residential flat building with basement parking and associated ancillary and landscaping works (DA) at 7 Hill Street, Coogee (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 3 October 2025. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) to the Applicant amending DA/932/2024 in accordance with the documents listed in Annexure B. The amendments are described by the parties as:

4. Reduction in bulk and scale, including height.

5. Increased building articulation.

6. Amendments made to the planter boxes to allow easier access and management.

7. Amendments to the basement to facilitate five parking spots including one car stacker.

8. As part of the conciliation conference process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended DA subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there “are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement” and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60]-[65].

8. I have carried out the required jurisdictional check: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]. For the reasons set out below, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions as required by s 34(3) of the LEC Act.

Owners consent

9. Owner’s consent accompanied the DA as required by s 23 of the EPA Reg. The Applicant is the director of Byndcorp Pty Ltd, who owns the site.

Community notification and objections

10. The Respondent notified the DA 17 October 2024 to 1 November 2024. Seven submissions were received. The amended DA was notified between 1 September 2025 to 15 September 2025, with three submissions received.

11. As the parties have reached agreement, the Court is not able to consider the merits of the DA. The parties have advised the Court that they considered the concerns raised in the written objections.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the site. The parties agree that the site has a long history of residential use and there are no indications of contamination. The parties agree and I accept, that the provisions of s 4.6 of SEPP RH have been satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2021

13. State Environmental Planning Policy (Sustainable Buildings) 2021 (SEPP SB) applies to the proposed development. The amended DA is accompanied by an amended BASIX Certificate. I accept the parties’ agreement that the provisions of SEPP SB have been met, including s 2.1(5) embodied emissions.

Randwick Local Environmental Plan 2012

14. The subject site is zoned R3 Medium Density Residential and the proposal for residential flat building is permissible with consent. Pursuant to cl 2.3 of the Randwick Local Environmental Plan 2012 (RLEP), I accept that regard has been had to the objectives of the zone. Clause 2.7 permits demolition with consent, as sought by the proposal.

15. Clause 4.3 height of buildings permits a maximum building height of 12m. The proposal is 12.02m. The amended DA is accompanied by a written request prepared by GSA Planning dated 23 July 2025 (height written request). I accept the parties’ agreement that the height written request is well founded and addresses the legally mandatory provisions of cl 4.6.

16. Clause 4.4 floor space ratio (FSR) permits a maximum FSR of 0.9:1. The proposal complies, at 0.895:1.

17. Clause 5.21 flood planning applies. Not mapped in the RLEP, the site is located within the Coogee Bay Flood Study which shows a minor overland flow path entering the site at the rear, with peak flood depths of 0.1m during the 1 in 100 year flood storm event. I accept the parties’ agreement that the amended proposal adequately manages overland flow to satisfy the clause and enforced by conditions of consent.

18. Clause 6.2 earthworks applies. The parties’ set out their consideration of the provisions, supported by four Geotechnical Reports prepared by Precision Engineering Group Pty Ltd with various dates.

19. Clause 6.4 stormwater management applies. As demonstrated by the amended Stormwater Plan prepared by United Consulting Engineers dated 17 June 2025, I accept that stormwater management will be adequately controlled, that there are adequate permeable areas on site, that sediment control and filters have been incorporated consistent with WSUD design principles and that the development will not result in any adverse impacts to surrounding development or water areas.

20. Clause 6.10 essential services applies. All services are currently available to the site, and adequate arrangements have been made for the proposed new stormwater and vehicular access services.

Heads of consideration

21. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act 1979 have been adequately considered.

Conclusion

22. 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’ decision.

23. 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.

24. I have considered the jurisdictional prerequisites and 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.

Orders

25. The Court orders that:

26. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the agreed costs of the Respondent thrown away as a result of the amendment of the application, in the sum of $8,000 within 28 days of the date of these Orders.

27. The appeal is upheld.

28. Development Application No. DA/932/2024 for the demolition of the existing structures and construction of a four-storey residential flat building with basement level for five cars, three residential dwellings, associated ancillary and landscaping works at 7 Hill Street, Coogee NSW is determined by the grant of consent subject to the conditions of consent at Annexure A.

S Porter

Commissioner of the Court

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Annexure A (548 KB, pdf)

Annexure B (172 KB, pdf)