Adabjou v Randwick City Council

[2020] NSWLEC 1644

Land and Environment Court

New South Wales

Medium Neutral Citation:

Adabjou v Randwick City Council [2020] NSWLEC 1644

Hearing dates:

Conciliation conference on 16 and 30 November 2020

Date of orders:

16 December 2020

Decision date:

16 December 2020

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely upon the amended plans listed in Annexure “A” based on the statement of reasons and jurisdictional matters contained in Annexure “B”.

(2) The appeal in respect of the property known as 30 Beach Street, Coogee, is upheld.

(3) Modification Application DA277/2018/A for the alterations and additions to the residential flat building is approved subject to extracted conditions at Annexure “C” and the consolidated set of conditions at Annexure “D”.

(4) The consolidated set of plans is at Annexure “E”.

(5) The applicant to pay the respondent’s costs thrown away in the sum of $3,300 to be paid within 14 days of the date of these Orders.

Catchwords:

DEVELOPMENT APPEAL – modification to approved residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Randwick Local Environmental Plan 2012

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Category:

Principal judgment

Parties:

Sasan Adabjou (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2020/247367

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 being an appeal against the actual refusal of an application to modify a development consent DA 277/2018/A seeking approval for modification to an approved 6 unit residential flat building with 9 carparking spaces by converting 2 studies in units 03 and 05 into bedrooms changing from 2-bedroom to 3-bedroom units, additional bathroom to unit 01 and addition of one car park in the basement (the Proposed Modification) at 30 Beach Street, Coogee, NSW legally described as Lot 23 in Deposited Plan 582007 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 16 and 30 November 2020. I have presided over the conciliation conference.

3. 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 granting leave to the Applicant to rely on amended plans, costs, the Court upholding the appeal and granting development consent to the development modification application subject to conditions.

4. 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 development modification application.

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 to be the terms of s 4.55 of the EPA Act to modify a consent and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The parties explained how the jurisdictional prerequisites have been satisfied as set out in the Statement of Reasons which is annexed to this judgment and marked B. I have considered this document and am satisfied that the Proposed Modification is of minimal environmental impact as the modifications are substantially the same development as the development for which consent was originally granted as a result of the amendments made by the Applicant to the plans.

6. The Statement of Facts and Contentions filed by the Respondent on 21 September 2020 indicates that upon notification of the Proposed Modification from 16 January 2020 to 30 January 2020 no submissions were received by the Respondent.

7. I have viewed and accept that an updated BASIX certificate dated 20 November 2020 prepared by Frys Energywise has been issued in respect of the amended plans and I am satisfied that the BASIX certificate complies with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

8. 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 for the reasons set out above.

9. 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.

10. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Annexure “A” based on the statement of reasons and jurisdictional matters contained in Annexure “B”.

2. The appeal in respect of the property known as 30 Beach Street, Coogee, is upheld.

3. Modification Application DA277/2018/A for the alterations and additions to the residential flat building is approved subject to extracted conditions at Annexure “C” and the consolidated set of conditions at Annexure “D”.

4. The consolidated set of plans is at Annexure “E”.

5. The applicant to pay the respondent’s costs thrown away in the sum of $3,300 to be paid within 14 days of the date of these Orders.

…………………………………

E Espinosa

Commissioner of the Court

Annexure A (1571063, pdf)

Annexure B (151212, pdf)

Annexure C (188801, pdf)

Annexure D (411549, pdf)

Annexure E (2590207, pdf)

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Decision last updated: 16 December 2020