Dilles v Randwick City Council - [2025] NSWLEC 1477

Land and Environment Court

New South Wales

Medium Neutral Citation: Dilles v Randwick City Council [2025] NSWLEC 1477
Hearing dates: Conciliation conference held on 26 June 2025
Date of orders: 03 July 2025
Decision date: 03 July 2025
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $7,800, such amount to be paid within 28 days of the date of this order.
(2) The appeal is upheld.
(3) The request pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 to vary the development standard for floor space ratio contained within cl 4.4 thereof, as prepared by ABC Planning dated 25 June 2025, is upheld.
(4) Development Consent is granted to Development Application No. DA/1089/2023 for alterations and additions to an existing boarding house (existing use rights) including partial demolition, internal reconfiguration for the provision of 12 boarding rooms and a new lift within the existing building envelope, addition of a second floor including a communal living room, outdoor terrace and laundry facilities, fenestration and terrace changes, bike storage, earthworks, and landscaping subject to the conditions of consent in Annexure A.

Catchwords:
DEVELOPMENT APPEAL – alterations and additions to boarding house - existing use rights – justification of contravention of floor space ratio development standard - conciliation conference – agreement between the parties - orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.16, 4.65, 4.66, 8.7, Div 4.11, Pt 7
Land and Environment Court Act 1979, s 34
Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.7
State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30A
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2
Randwick Local Environmental Plan No 71 (Coogee Precinct)

Cases Cited:
Star Property Investments Pty Ltd and Another v Leichhardt Municipal Council [2000] NSWLEC 235
Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138
Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123
Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71

Category: Principal judgment
Parties: Nickolas Dilles (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
N Eastman SC (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Hartley Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2024/153066
Publication restriction: Nil

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA/1089/2023 seeking consent for works to a former boarding house to enable the provision of 11 boarding rooms and construction of new rear fire stairs (Proposed Development) at 115 Dolphin Street, Coogee legally described as Lot A in DP 951558 (the Site).
The hearing of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1477
Decision Date: 03 July 2025

CaseChat Overview and Summary

The case of Dilles v Randwick City Council involved a dispute over a development application for alterations and additions to a boarding house in Sydney. The applicant, Dilles, sought approval for significant modifications to an existing boarding house, including internal reconfiguration, the addition of a second floor, and other changes. The Randwick City Council was the respondent, tasked with reviewing and deciding on the application in accordance with the Environmental Planning and Assessment Act 1979 and relevant local environmental plans.

The primary legal issues before the court were whether the Council had the authority to grant the requested variance from the floor space ratio development standard under the Randwick Local Environmental Plan 2012 and whether the applicant should bear the costs associated with the amendment of the development application. Additionally, the court had to determine the appropriate conditions for granting development consent if the application was approved.

The court found that the Council had the authority to grant the requested variance under the Local Environment Plan, as it was permissible for the Council to vary development standards in certain circumstances. The court further held that the applicant was responsible for the costs incurred by the Council due to the amendment of the development application. In light of these findings, the court upheld the appeal, granted development consent for the proposed modifications subject to specified conditions, and ordered the applicant to pay the agreed costs of $7,800 within 28 days.

The court's decision not only resolved the immediate dispute between the parties but also provided clarity on the application of the Local Environment Plan in similar cases. The granting of development consent, subject to the outlined conditions, allowed the applicant to proceed with the proposed modifications to the boarding house, ensuring compliance with relevant planning regulations.

Orders

Orders of the court

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $7,800, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) The request pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 to vary the development standard for floor space ratio contained within cl 4.4 thereof, as prepared by ABC Planning dated 25 June 2025, is upheld.

(4) Development Consent is granted to Development Application No. DA/1089/2023 for alterations and additions to an existing boarding house (existing use rights) including partial demolition, internal reconfiguration for the provision of 12 boarding rooms and a new lift within the existing building envelope, addition of a second floor including a communal living room, outdoor terrace and laundry facilities, fenestration and terrace changes, bike storage, earthworks, and landscaping subject to the conditions of consent in Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dilles v Randwick City Council [2025] NSWLEC 1477
Hearing dates:	Conciliation conference held on 26 June 2025
Date of orders:	03 July 2025
Decision date:	03 July 2025
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $7,800, such amount to be paid within 28 days of the date of this order. (2) The appeal is upheld. (3) The request pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 to vary the development standard for floor space ratio contained within cl 4.4 thereof, as prepared by ABC Planning dated 25 June 2025, is upheld. (4) Development Consent is granted to Development Application No. DA/1089/2023 for alterations and additions to an existing boarding house (existing use rights) including partial demolition, internal reconfiguration for the provision of 12 boarding rooms and a new lift within the existing building envelope, addition of a second floor including a communal living room, outdoor terrace and laundry facilities, fenestration and terrace changes, bike storage, earthworks, and landscaping subject to the conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPEAL – alterations and additions to boarding house - existing use rights – justification of contravention of floor space ratio development standard - conciliation conference – agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.16, 4.65, 4.66, 8.7, Div 4.11, Pt 7 Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.7 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30A State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2 Randwick Local Environmental Plan No 71 (Coogee Precinct)
Cases Cited:	Star Property Investments Pty Ltd and Another v Leichhardt Municipal Council [2000] NSWLEC 235 Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138 Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71
Category:	Principal judgment
Parties:	Nickolas Dilles (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: N Eastman SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2024/153066
Publication restriction:	Nil