Cohen v Randwick City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cohen v Randwick City Council [2020] NSWLEC 1497

Hearing dates:

Conciliation conference on 12 October 2020

Date of orders:

20 October 2020

Decision date:

20 October 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Actare:

(1) The applicant is granted leave to rely upon Plan B02 Rev S drawn by Casey Brown Architecture dated 9 August 2019.

(2) The appeal is upheld.

(3) Application to Modify Development Application no. DA/899/2016/B is approved subject to the conditions contained in Annexure ‘A’.

(4) Annexed and marked ‘B’ is a set of the consolidated version of the conditions of consent, as modified.

Catchwords:

MODIFICATION APPLICATION – amendment of conditions – conciliation conference – agreement between the parties – orders

Category:

Principal judgment

Parties:

Emma Jane Cohen (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Thomson Geer Lawyers (Applicant)
Randwick City Council (Respondent)

File Number(s):

2020/32225

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Emma Jane Cohen (applicant) against the respondent's determination of Modification Application No. DA/899/2016/B to “legitimise the extension of the basement area, conversion of the storeroom to a bedroom and alteration of the driveway” (Modification Application) at 12 Bunya Parade, Coogee (Site).

2. The Modification Application was approved by the respondent on 31 July 2019 subject to the inclusion of condition 67 as follows:

“Basement Guest Room

67.   No consent is granted for the use of any part of the basement/sub floor area as a guest room, secondary dwelling or any other habitable purpose.”

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 12 October 2020. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is that the appeal is upheld, subject to the amended conditions of consent annexed to this judgment.

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 the consent was originally granted and before that consent as originally granted was modified. The original consent (DA/899/2016) approved the demolition of the previous…