Reid v Randwick City Council

Parties: Michelle Reid (First Applicant)
Matthew Alan Reid (Second Applicant)
Randwick City Council (Respondent)

Representation: Counsel:
J Palmer (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Marsdens (Respondent)

File Number(s): 2025/144500

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) against the refusal of development application DA/62/2025. The DA seeks development consent for demolition of existing structures, Torrens title subdivision into two lots and construction of two semi-detached dwellings with car parking and associated works (DA) at 260 Clovelly Road, Coogee (site) (Lot 6 in DP 8781).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) to the Applicant amending development application DA/62/2025 in accordance with the documents listed below (amended DA):

3. Architectural Drawings prepared by Anna Antoniades Architecture and dated July 2025:

(a) 1056-DA-00: Cover Page and BASIX Commitments Rev B (b) 1056-DA-01: Roof/Site Plan Rev B (c) 1056-DA-02: Ground Floor Plan Rev B (d) 1056-DA-03: First Floor Plan Rev B (e) 1056-DA-04: East Elevation Rev B (f) 1056-DA-05: North & Clovelly Road Elevation Rev B (g) 1056-DA-06: West Elevation Rev B (h) 1056-DA-07: South & Dans Ave Elevations Rev B (i) 1056-DA-08: Section A-A Rev B (j) 1056-DA-09: DA Controls Rev B (k) 1056-DA-10: Street and East Elevation Finishes Rev B (l) 1056-DA-11: Clovelly Road Streetscape Elevation Rev A

2. Landscape Plans prepared by Conzept Landscape Architects dated 2 July 2025 and all Rev C:

(a) LPDA 25-140 01 Hardscape Plan (b) LPDA 25-140 02 Landscape Plan (c) LPDA 25-140 03 Details (d) LPDA 25-140 04 Planting Palette (e) LPDA 25-140 05 Specification

3. Stormwater Management Plans prepared by E2 Civil and Structural Design and dated 03 July 2025:

(a) 21.182 SW1 Roof Drainage Plan Rev E (b) 21.182 SW2 Ground Floor Drainage Plan, Sections and Details Rev F

4. Shadow Diagrams prepared by CAD Draft P/L dated 26 June 2025, all Rev B.

5. (Solar Access Diagrams prepared by CAD Draft P/L dated 26 June 2025, all Rev B.

6. BASIX Certificate No. 1753325M_03 dated 03 July 2025

7. Clause 4.6 Variation Request: Variation to Minimum Lot Size Development Standard prepared by Martens & Associates Pty Ltd and dated 4 July 2025

8. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 18 July 2025. I presided over the conciliation conference.

9. At the conciliation conference, 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 DA and granting development consent to the amended DA subject to conditions. 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.

Jurisdictional Prerequisites

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

6. The Applicants’ own the site and owner’s consent accompanied the Class 1 application. The Respondent notified the DA between 25 February 2025 to 11 March 2025. No submissions were received.

7. I accept the parties’ agreement that Pt 3 of State Environmental Planning Policy (Housing) 2021 does not apply as the proposed development does not meet the definition of a residential flat building or boarding house.

Randwick Local Environmental Plan 2012

8. The site is zoned R2 Low Density Residential under the Randwick Local Environmental Plan 2012 (RLEP). The proposed development for semi-detached dwellings is permitted with consent in the zone and I have had regard to the objectives of the zone pursuant to cl 2.3.

9. The parties agree and I accept that the following applicable RLEP preconditions are met:

10. Clause 2.6 permits the proposed subdivision with consent.

11. Clause 2.7 permits the proposed demolition with consent.

12. Clause 4.1 minimum subdivision lot size applies. The minimum subdivision lot size applicable to the site is 275m2. The proposed subdivision is for two lots sized 254.25m2 and seeks a variation from the minimum standard pursuant to cl 4.6. The amended DA is accompanied by a Clause 4.6 Variation Request: Variation To Minimum Lot Size Development Standard prepared by Martens dated 4 July 2025 (written request). I accept the parties’ agreement that the written request satisfactorily addresses the relevant provisions of cl 4.6 to vary cl 4.1.

13. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 9.5m. The amended architectural plans prepared by Anna Antoniades Architecture (architectural plans) demonstrate that the development is below the maximum building height (Drawings 1056-DA-[04] B, 1056-DA-[05] B, 1056-DA-[06] B and 1056-DA-[07] B).

14. Clause 4.4A floor space ratio (FSR) applies to the site and prescribes a maximum of 0.65:1. The parties agree that cl 4.4A is the applicable development standard and that the architectural plans demonstrate that the development does not exceed the maximum FSR, at 0.62:1. I note for the abundance of caution that cl 4.4A(4) stipulates that cl 4.4(2) does not apply to semi-detached dwellings located on lots less than 300m2 in size.

15. Clause 6.2 earthworks applies. I accept that the parties have considered the provisions on the basis of the concept stormwater management plans prepared by E2 Civil and Structural Design with various revisions (concept stormwater management plans) and Statement of Environmental Effects prepared by Martens dated January 2025 (SEE) and conditions of consent.

16. Clause 6.4 stormwater management applies. The DA is accompanied by concept stormwater management plans which address the provisions and includes rainwater tanks for onsite stormwater retention and reuse of water as well as on side detention.

17. Clause 6.10 essential services applies to the amended DA. The parties agree that all essential services are provided as set out in the SEE.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. The provisions of s 4.6 apply to the proposed development. Council’s Assessment Report and the SEE conclude that there is no evidence to suggest any contamination of the site or that the site is unsuitable for continued use for residential development. Accordingly, the parties agree, and I accept that the provisions of s 4.6 have been satisfied.

State Environmental Planning Policy (Sustainability) 2022

11. The parties agree and I accept that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of the SEPP.

Heads of consideration

12. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

13. 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.

14. 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.

15. 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

16. The Court orders:

17. The appeal is upheld.

18. Development consent is granted to DA/62/2025 for the demolition of existing structures, Torrens title subdivision into two lots, construction of two semi-detached dwellings with ancillary carparking structures, earthworks, landscaping, stormwater drainage and fencing at 260 Clovelly Road, Coogee subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

**********

Annexure A (376 KB, pdf)