Moussa v Randwick City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38
Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 4.4A, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.10, Sch 5
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022

Category: Principal judgment

Parties: Therese Moussa (Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
J Farrell (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2025/346568

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER**:** This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Ms Moussa (the Applicant), against the deemed refusal of Development Application DA/589/2025 (the DA) by Randwick City Council (the Respondent).

2. At the date of its lodgement on 26 June 2025, the DA sought consent for alterations and additions to an existing residential dwelling house, including the construction of a basement with car lift and turntable, construction of a swimming pool and associated landscape works, including raising the levels of the rear garden, installation of a residential lift, internal layout changes, amendments to external fenestration, replacement of roof tiles, and replacement of front, side and rear fencing at 29 Arcadia Street, Coogee (the site).

3. The Applicant lodged this Class 1 application with the Court on 9 September 2025. Following the commencement of proceedings, the DA was formally refused by the Respondent’s Local Planning Panel on 9 October 2025.

4. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 and 18 February 2026. I presided over the conciliation conference.

5. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

6. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of inconsistencies between the DA and desirable elements of the existing streetscape and desired future character of the locality, the exceedance of the relevant building height and floor space ratio (FSR) controls, adverse impacts upon the heritage significance of the existing dwelling, excessive excavation, excessive site coverage, inadequate provision of deep soil and landscaping, the proposed parking configuration, and unreasonable impacts upon the acoustic and visual privacy of neighbouring properties, amongst other contentions.

7. Agreed design amendments have been made to reduce the extent of excavation and resultant basement structures. Car parking accessed by a car lift on site is agreed to be limited to providing two car spaces. The proposed swimming pool location and size have been adjusted and additional tree planting provided. Privacy screens and landscaping introduced at the site boundary are agreed to eliminate cross viewing between neighbouring properties. The proposed heritage conservation works to the existing dwelling have been refined and are now agreed to appropriately conserve the heritage significance of the existing dwelling.

8. With these agreed amendments being introduced by the Applicant, the Respondent has indicated that the proposed exceedance of building height and FSR controls, which are largely attributable to the form and scale of the existing dwelling on the site, are supportable.

9. Collectively, the design amendments are agreed to resolve each of the contentions in this dispute.

10. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

12. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

13. The DA was publicly notified from 3 July 2025 to 17 July 2025. One submission was received by the Respondent, raising concerns for traffic and congestion during the construction phase.

14. The parties agree, and I am satisfied, that the amended DA and conditions of consent satisfactorily consider the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

15. The parties agree, and I am satisfied, that the Randwick Local Environmental Plan 2012 (RLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential. The amended DA - characterised as a detached single dwelling house - is permissible with consent in Zone R3.

16. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the RLEP, the amended DA is consistent with the relevant R3 Medium Density zone objectives.

17. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the RLEP, consent is required to carry out demolition, and accordingly consent for a minor extent of the existing structures on the site is sought within the amended DA.

18. The parties agree, and I am satisfied, that all principal development standards of the RLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings, cl 4.4 - FSR and cl 4.4A - Exceptions to FSR—Zones R2 and R3.

19. In such an instance, cl 4.6(3) of the RLEP requires the consent authority (the Court in this case) to be satisfied the Applicant has demonstrated that compliance with these relevant development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

Height of buildings

20. The Applicant has provided a written document seeking to vary the height of buildings development standard, prepared by The Planning Studio and dated 6 February 2026.

21. Pursuant to cl 4.3 of the RLEP the site is subject to a height of building development standard of 9.5m.

22. The existing dwelling, which is an identified local heritage item, has a maximum building height of 17.59m, exceeding the height of building development standard by 8.09m and representing a variance of approximately 85%. The amended DA proposes the replacement of the existing, non-original concrete roof tiles with slate tiles and traditional guttering and downpipes. Whilst the roof structure would remain unchanged, the works are proposed above the maximum building height but do not increase the extent of the existing height non-compliance.

23. Since the amended DA is for alterations and additions to an existing dwelling house that exceeds the height of buildings development standard, the Applicant’s cl 4.6 written document has been provided on a precautionary basis.

24. The parties agree, and I am satisfied, that this written document adequately justifies the variance to the height of buildings development standard for the following reasons:

25. The amended DA is agreed to result in development of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

26. No changes are proposed to the building envelope of the existing heritage listed dwelling house, which is the aspect of the amended DA that exceeds the building height control.

27. The amended DA remains compatible with the scale and character of contributory buildings and other nearby heritage items.

28. The amended DA will have beneficial effects on the heritage significance of the existing dwelling as a result of the proposed remedial conservation works proposed.

29. The amended DA will not result in unreasonable additional impacts upon the amenity of neighbouring properties in terms of visual bulk, loss of privacy, cross viewing, overshadowing or view affectation.

30. Relevant objectives of the RLEP R3 Medium Density Residential land use zone include to provide for the housing needs of the community within a medium density residential environment; to provide a variety of housing types within a medium density residential environment; 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; to protect the amenity of residents. I am satisfied the amended DA is consistent with these objectives.

31. Relevant objectives of cl 4.3 of the RLEP - Height of buildings - include to ensure that the size and scale of development is compatible with the desired future character of the locality; to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item; and to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. I am satisfied the amended DA meets these objectives.

32. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

FSR

26. Additionally, the Applicant has provided a second written document, seeking to vary the relevant FSR development standard, prepared by The Planning Studio and dated 17 February 2026.

27. Pursuant to cll 4.4 and 4.4A of the RLEP the site is subject to a FSR development standard of 0.65:1. The existing dwelling has a FSR of 1.08:1, exceeding the development standard by 200.3sqm of gross floor area (GFA) and representing a variance of approximately 66%. The amended DA proposes a minor reduction to the existing FSR, lowering it to 1.06:1, but would continue to exceed the FSR development standard by approximately 192.18sqm or approximately 64%.

28. The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the FSR development standard for the following reasons:

29. The amended DA is agreed to result in development of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

30. No changes are proposed to the building envelope of the existing heritage listed dwelling house, which is the aspect of the amended DA that exceeds the FSR control.

31. Other built aspects of the amended DA, such as new basement structures and the swimming pool do not contribute to GFA or FSR, and do not contribute to building bulk and scale. Consequently, the amended DA generally maintains the overall building appearance within the existing streetscape.

32. The proposed FSR exceedance does not give rise to unreasonable additional adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

33. I am satisfied the amended DA is consistent with the objectives of the RLEP R3 Medium Density Residential land use zone as previously noted in this judgment.

34. The objectives of cl 4.4 of the RLEP - FSR - include to ensure that the size and scale of development is compatible with the desired future character of the locality; to ensure that buildings are well articulated and respond to environmental and energy needs; to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item; and to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. I am satisfied the amended DA meets these objectives.

35. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

36. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the RLEP - Heritage conservation - the site is a locally listed heritage item and identified within Sch 5 of the RLEP (item No. I40 - “Roslyn”, Victorian residence). The site is also within close proximity to a number of other listed heritage items.

37. Accordingly, the consent authority (the Court) must, before the grant of development consent, consider the effect of the amended DA on the heritage significance of these items.

38. The amended DA is supported by a Heritage Impact Statement, a Schedule of Conservation Works and an amended Structural Engineering Feasibility Report, which each assess the impact of the proposal upon the subject heritage item and its context. The parties agree, and I am satisfied, that the amended DA creates no detrimental impacts upon any heritage item and, by retaining and conserving the existing building, will improve the heritage significance of the item.

39. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the RLEP - Flood planning - the site is situated within the catchment of the Coogee Bay Flood Study, which demonstrates that the site will not be impacted by flooding for all storm events up to and including the 1% AEP (1 in 100 year) storm event.

40. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the RLEP - Acid sulfate soils - the site is mapped within an area classified as Class 5 Acid Sulfate Soils. Works are proposed below 5m Australian Height Datum. The Applicant has provided a Geotechnical Investigation and Assessment of Acid Sulfate Soils Potential Report, prepared by MM Geomechanics, which identifies no occurrences of acid sulfate soils on the site, and concludes that an Acid Sulfate Soils Management Plan is not required in this instance.

41. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the RLEP - Earthworks - the amended DA proposes excavation works forming a matter for consideration. The Applicant has provided a Geotechnical Investigation and Assessment of Acid Sulfate Soils Potential Report, prepared by MM Geomechanics addressing the matters set out at cl 6.2(3), which the parties agree, and I am satisfied, have been given appropriate consideration. Agreed conditions of consent are imposed to require a construction methodology and engineering design be approved by the Council, to ensure the support of adjoining land, and to regulate excavation and construction phase works.

42. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the RLEP - Stormwater management - the Applicant has provided amended Stormwater Plans prepared Hogan Consulting and a Stormwater Drainage Certificate prepared by Hogan Consulting. The amended DA satisfactorily addresses those matters set out at cl 6.4(3) and the proposal is designed to maximise water-permeable surfaces on the site, and avoids significant adverse impacts of stormwater runoff on adjoining properties.

43. The parties agree, and I am satisfied, that pursuant to cl 6.10 of the RLEP - Essential services - the site is suitably supplied with water and electricity services, and has access to the main sewer system. The amended DA proposes a stormwater management system and appropriate vehicular access to parking.

44. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.

45. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated, and that the proposed use of the land is to remain residential in nature.

46. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

47. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree, and I am satisfied, that the amended DA seeks consent for the removal of trees along the southern boundary of the site. The amended DA is also supported by landscape plans, which propose replacement canopy trees, additional deep soil and the embellishment of planting areas on the site. Accordingly, I am satisfied that Ch 2 of SEPP BC has been appropriately addressed.

48. Chapter 6 of SEPP BC deals with water catchment. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment. The Applicant has provided amended Stormwater plans and a Stormwater Drainage Certificate, both prepared by Hogan Consulting.

49. Pursuant to the provisions of s 6.6 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon water quality and quantity within the catchment. Agreed conditions of consent are imposed to control erosion and sediment during construction.

50. Pursuant to the provisions of s 6.7 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon aquatic ecology within the catchment.

51. Pursuant to the provisions of s 6.8 of SEPP BC, the parties agree, and I am satisfied, that the amended DA is unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems, and will not result in the release of pollutants that may have an adverse impact on water quality of a natural waterbody, or on the natural recession of floodwaters into wetlands or other riverine ecosystems.

52. Pursuant to the provisions of s 6.9 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no impact upon recreational land or public access to foreshores or natural water bodies within the catchment.

53. Pursuant to the provisions of s 6.10 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no adverse impacts upon adjacent or downstream local government areas within the catchment.

54. Pursuant to the provisions of s 6.11 of SEPP BC, the parties agree, and I am satisfied, that the amended DA is not located on land within 100m of a natural waterbody in a regulated catchment.

55. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW), a BASIX certificate number A1788722_03, dated 16 February 2026, has been provided with the DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

56. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

57. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

58. The Court notes that:

59. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.

60. The Applicant has lodged the amended DA with the Court on 18 February 2026.

Orders

53. The Court orders that:

54. Leave is granted to the Applicant to amend Development Application DA/589/2025 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

55. The appeal is upheld.

56. Consent is granted to Development Application DA/589/2025 (as amended) for alterations and additions to an existing residential dwelling house, including the construction of a basement with a car lift, construction of a swimming pool and associated landscape works, including raising the levels of the rear garden, installation of a residential lift, internal layout changes, amendments to external fenestration, replacement of roof tiles, and replacement of front, side and rear fencing at 29 Arcadia Street, Coogee, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A (456 KB, pdf)

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Amendments

06 March 2026

Removed underlining