Attena Group Pty Ltd v Randwick City Council

[2022] NSWLEC 1163

Land and Environment Court

New South Wales

Medium Neutral Citation:

Attena Group Pty Ltd v Randwick City Council [2022] NSWLEC 1163

Hearing dates:

Conciliation Conference on 20 December 2021, 25 February 2022

Date of orders:

08 April 2022

Decision date:

08 April 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

See orders at [9].

Catchwords:

MODIFICATION APPLICATION – modifications to dual occupancy development – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.56, 8.9

Environmental Planning and Assessment Regulation 2000, cl 121B

Land and Environment Court Act 1979, s 34

Cases Cited:

Attena Group Pty Ltd v Randwick City Council [2020] NSWLEC 1501

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Attena Group Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Farrell (Barrister) (Applicant)
A Boskovitz (Solictor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Whilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2021/249746

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a modification application with respect to a dual occupancy development at 285 Malabar Road, Maroubra. The application seeks to modify the consent through internal reconfiguration, extension of the building to the west (front), reduction of the planter area at Level 2, changes to the windows and conversion of pitched roof to flat roof. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.56 of the EPA Act. The final orders in this appeal, outlined in [9] below, are required to be made as a result of an agreement between the parties that was reached at a conciliation conference.

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 was held on 20 December 2021. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement, under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 18 March 2022.

4. On 20 December 2021, the Applicant amended the modification application with the agreement of the Respondent as the relevant consent authority under cl 121B of the Environmental Planning and Assessment Regulation 2000 (Regulation). The Court has been notified that the amended modification application has been lodged on the NSW planning portal. As such the requirements of cl 121B of the Regulation are met.

5. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. The precondition at s 4.56(1)(a) of the EPA Act is met.

2. The application has been notified in accordance with the Randwick Development Control Plan 2013 from 15 January 2021 for a period of 14 days. The precondition at s 4.56(1)(b) of the EPA Act is met. Further, I am satisfied that consistent with s 4.56(1)(d), I have considered the submissions made with respect to the proposed modification.

3. I am satisfied that the Respondent has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification. The precondition at s 4.56(1)(c) of the EPA Act is met.

4. In determining the modification application, I have taken into consideration those matters referred to in s 4.15(1) of the EPA Act as are relevant to the development. I have also taken into consideration the reasons for the original grant of consent: Attena Group Pty Ltd v Randwick City Council [2020] NSWLEC 1501.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

8. The Court notes:

1. Randwick City Council as the relevant consent authority has agreed, under cl 121B(1) of the Regulation, to the Applicant amending modification application DA/292/2019/A.

2. The Applicant has uploaded the amended application on the NSW planning portal on 18 January 2022.

3. The Applicant has filed the amended application with the Court on 24 January 2022.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Court are:

1. That the appeal is upheld.

2. Modification Application No. DA/292/2019/A for amendments to a dual occupancy development including a hip roofed form on the western façade, changes to the southern façade and the use of the dual occupancy at 285 Malabar Road, Maroubra is approved subject to the conditions set out in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

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Annexure A.pdf